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 matter between the club,
Club V, from country R
as Claimant / Counter-Respondent
and the player,
Player K, from country S
as 1st Respondent / Counter-Claimant
and the club,
Club L, from country P
as 2nd Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 7 June 2008, Player K, from country S (hereinafter: the player), born in May
1985, and Club V, from country R (hereinafter: Club V), signed an employment
contract (hereinafter: the contract) valid as from 15 June 2008 until 15 June
2011.
2.
On the same date, the parties signed a financial appendix to the employment
contract, according to which the club undertook to pay the player the following
amounts:
-
For the period between 15 June 2008 and 15 June 2009:
- EUR 90,000, after the player has successfully passed all medical
examinations;
- EUR 90,000, payable in 12 instalments of EUR 7,500 each, until the 22 nd
of each month;
- EUR 180,000 as bonus, in case the club reaches the 1st or 2nd place in Liga
1 (Champions League), payable if the player participates in at least 50%
of the matches;
- EUR 90,000 as bonus, in case the club reaches the 3 rd, 4th of 5th place in
Liga 1 (UEFA Cup participation), payable if the player participates in at
least 50% of the matches;
- EUR 3,000 for each match won in the First League, 50% of which
payable after the match and the remaining 50% by the end of the
Championship, if the club reaches at least the fifth position of the Liga 1
classification;
- EUR 6,000 for each match won against Club R, Club D, Club C or Club P,
50% of which payable after the match and the remaining 50% by the
end of the Championship, if the club reaches at least the fifth position
of the Liga 1 classification.
-
For the period between 15 June 2009 and 15 June 2010:
- EUR 90,000, at the beginning of the country R Championship;
- EUR 130,000, payable in 12 instalments of EUR 10,830 each, until the
22nd of each month;
- EUR 220,000 as bonus, in case the club reaches the 1st or 2nd place in Liga
1 (Champions League), payable if the player participates in at least 50%
of the matches;
- EUR 110,000 as bonus, in case the club reaches the 3rd, 4th of 5th place in
Liga 1 (UEFA Cup participation), payable in case the player participates
in at least 50% of the matches.
Club V, from country R / Player K, from country S / Club L, from country P
2/17
-
For the period between 15 June 2010 and 15 June 2011:
- EUR 90,000, at the beginning of the country R Championship;
- EUR 150,000, payable in 12 instalments of EUR 12,500 each, until the
22nd of each month;
- EUR 240,000 as bonus, in case the club reaches the 1st or 2nd place in Liga
1 (Champions League participation), payable in case the player
participates in at least 50% of the matches;
- EUR 120,000 as bonus, in case the club reaches the 3rd, 4th of 5th place in
Liga 1 (UEFA Cup participation), payable in case the player participates
in at least 50% of the matches.
3.
According to art. 2 of the financial appendix, all amounts are to be paid
considering the exchange rate of the payday established by the National Bank
of country R.
4.
On 2 August 2010, the parties concluded an “Addendum to the contract”
which, inter alia, stipulates the following:
“3.1 Prolongs the contract with one (1) year, respective 01.07.2011-30.06.2012,
with the following financial terms: 240.000 euro per year, 20.000 euro per
month.
3.2 For the season 2010-2011 will receive the amount of 240.000 euro divided
in 12 monthly instalments of 20.000 euro each, on 25 day of the month,
starting with July.
3.3. The amount of 110.000 euro (UEFA bonus 2009-2010), will be paid in 2
(two) instalments: 55.000 euro on 31st December 2010 and 55.000 euros until
30th of May 2011, with the condition to comply Inner Order Regulations,
exclusive technical errors during the official games.
3.4 The financial penalties of 10% on 2008-2009 and 25% on 2010 applied to
the player, will be withhold if the player do not comply the Inner Order
Regulation of the club, exclusive the technical errors during the official
games”.
5.
On 24 January 2011, 28 January 2011 and 3 February 2011, the player
reminded the club of its alleged arrears corresponding to unspecified
“contractual financial obligations”. On 25 May 2011, the player sent the club
another reminder requesting the payment of the outstanding amount of EUR
31,210 for the season 2008/2009, EUR 40,733 for the season 2009/2010 and EUR
97,293, corresponding to several bonuses and salaries.
6.
On 28 January 2011, 11 February 2011 and 31 May 2011, the club replied to the
player, informing him of the disciplinary sanctions imposed on him by the
club’s board of administration on 14 January 2011 and ratified by the country
Club V, from country R / Player K, from country S / Club L, from country P
3/17
R Football Federation on 9 February 2011, as well as rejecting his financial
claims.
7.
On 14 June 2011, the player unilaterally terminated the employment contract
with the club, in writing, alleging non-compliance by the club with its financial
obligations.
8.
On 1 July 2011, the player and the Club L, from country P signed an employment
contract, valid as from the date of signature until 30 June 2014.
9.
On 8 July 2011, Club V lodged a claim in front of FIFA against the player and his
new club for breach of contract without just cause and inducement to breach of
contract, requesting the payment of the total amount of EUR 429,221,
calculated as follows:
-
-
EUR 64,221 corresponding to advance payments for the season 2011/2012, to
be reimbursed by the player. In this respect, Club V submitted two receipts
issued with the description “according to the contract”, dated 2 May 2011 for
currency of country R 200,000 (EUR 49,020) and 18 May 2011 for currency of
country R 80,000 (EUR 19,465);
EUR 365,000 as compensation for breach of contract, corresponding to:
- EUR 110,000 as the salary of the player’s replacement for season
2011/2012;
- EUR 130,000 as partial compensation for the transfer fee paid for the
player’s replacement;
- EUR 125,000 as non-amortized transfer fee paid for the player.
10.
Club V further claims that the player should be sanctioned with a ban for six
“matches” and should pay all legal fees.
11.
Club V holds that, even though it has always complied with all its contractual
obligations, the player terminated his contractual relationship with the club in
writing on 14 June 2011 without just cause and within the protected period.
The club outlines that the player was sanctioned several times by the club for his
misconduct, his absence of training, lack of concentration during matches,
“unsportive” gestures and for being sanctioned with a red card for throwing an
object in the stands during an UEFA Europa League match.
12.
Furthermore, Club V rejects the reasons invoked by the player in his termination
letter and declares having even made two payments in advance for the season
2011/2012, upon the player’s request, in particular the amounts of currency of
country R 200,000 on 2 May 2011 and currency of country R 80,000 on 18 May
2011. After having received several notifications of the player, the club replied
Club V, from country R / Player K, from country S / Club L, from country P
4/17
to the player on 31 May 2011 specifying that the amounts claimed by the player
“were not due, because for the seasons 2008/2009 and 2009/2010, according to
the contract and Financial addendum, the player were not entitled to other
bonuses than those specified in the contract, that was paid in full, with the
exception of the bonus of 100.000 Euro, for the period 2009-2010, when the
player breached the Inner Order Regulation and refused to present himself at
the team on 10 January 2011”. In this respect, the club submits the following
breakdown of the amount of currency of country R 1,134,350 (according to Club
V EUR 269,995) it sustains to have paid during the 2010/2011 season:
Date
3
Sept.
2010
8
Sept.
2010
15 Sept.
2010
23 Sept.
2010
14
Oct.
2010
27
Oct.
2010
4
Nov.
2010
2
Dec.
2010
10
2011
Jan
Amount
paid
in
(currency of
country R)
currency of
country R
51,250
currency of
country R
369,000
currency of
country R
12,000
currency of
country R
12,450
currency of
country R
51,250
currency of
country R
24,000
currency of
country R
12,000
currency of
country R
50,000
currency of
country R
30,000
Corresponding Date
to EUR
EUR 12,002
EUR 86,215
EUR 2,837
EUR 2,923
EUR 12,002
EUR 5,607
EUR 2,797
EUR 11,655
18.
Feb. currency of
2011
country R
50,000
3
Mar. currency of
2011
country R
36,000
10
Mar. currency of
2011
country R
12,000
23
Mar. currency of
2011
country R
50,000
14
Apr. currency of
2011
country R
24,000
21
Apr. currency of
2011
country R
70,400
2
May currency of
2011
country R
200,000
18
May currency of
2011
country R
80,000
EUR
11,792
EUR 8,571
EUR 2,864
EUR
12,136
EUR 5,854
EUR
17,213
EUR
49,020
EUR
19,465
EUR 7,042
Club V, from country R / Player K, from country S / Club L, from country P
5/17
13.
Club V emphasizes it made all payments and referred to the various sanctions
imposed on the player. Furthermore, the club underlined that art. 3 par. 3 of
the Addendum stipulates that the amount of EUR 110,000 would only be paid
if the player would comply with the Internal Order Regulations of the club,
“which the player did not”, and, as a result, the bonus for the season 20092010 was not due.
14.
In this respect, Club V pointed out that the following decisions of the club’s
administrative board were ratified by the Disciplinary Commission of the
country R Professional League of Football:
-
25 May 2009: 10% of the contract value for season 2008/2009;
20 August 2009: 10% of the contract value for season 2009/2010;
7 June 2010: 15% of contract value for season 2009/2010;
28 July 2010: 25% of contract value for season 2010/2011; (for being absent
for 3 weeks)
14 January 2011: prohibition to participate in “official games, friendly games
and trainings of the ream for a period of 3 months” since the player did not
“come to the team reunion” on 10 January 2011.
15. Club V claims to have suffered damages from the player’s departure and, in
order to replace him, it signed an employment contract with a player it
transferred from Club E, from country L, for the amount EUR 250,000.
16. In his reply, the player rejected Club V’s accusations and stated that he had just
cause to terminate the employment contract. In this regard, the player states
that he always had to face delays in the payment of his remuneration and that,
by the time of termination of the contract, the amount of EUR 450,000 should
have been paid for the season 2010/2011 (notwithstanding the winning
premiums), as follows:
a) EUR 220,000 as salaries for 11 months,
b) EUR 110,000 as bonus for the 3rd place in the 2009/2010 season, and
c) EUR 120,000 as bonus for the 3rd place in the 2010/2011 season.
17.
According to the player, by means of art. 3 par. 3 of the Addendum, Club V
explicitly acknowledged owing him the amount of EUR 110,000 as bonus for
the 3rd place in the season 2009/2010, submitting a table of results for the
season 2009/2010. In addition, Club V never denied owing him the amount of
EUR 120,000 as bonus for the 3rd place in the 2010/2011 season, submitting a
table of results for the season 2010/2011.
Club V, from country R / Player K, from country S / Club L, from country P
6/17
18.
The player acknowledges that Club V made payments in the total amount of
EUR 269,995 to him (i.e. currency of country R 1,134,350), however, even if one
would follow Club V’s statement that this was paid for salaries only, quod non,
even then Club V would be in arrears of paying EUR 180,005 (EUR 450,000 –
EUR 269,995).
19.
Nevertheless, the player deems that the “global amount” of EUR 269,995 is
totally misleading, false and unsubstantiated. In particular, it is not clear from
the payment receipts provided by Club V for which debts such payments were
made. The player alleges that the payments made on 15 September 2010 (EUR
2,837), 23 September 2010 (EUR 2,923), 27 October 2010 (EUR 5,607), 4
November 2010 (EUR 2,797), 10 March 2011 (EUR 2,923) and 14 April 2011 (EUR
5,854), are related to match bonuses for the following matches: vs. Club O, on
13 September 2010, vs. Club D, on 19 September 2010, vs. Club C, on 15
October 2010, vs. Club V, on 29 October 2010, vs. Club U, on 7 March 2011 and
vs. Club D, on 9 April 2011. The player claims that the parties agreed upon
winning premiums for the entire term of the contractual relationship and
outlined that Club V, by paying certain winning premiums to the player during
the 2009/2010 and 2010/2011 seasons, created legitimate expectations that it
would pay premiums in the same way as during the 2008/2009 season. The
player added that should Club V deny this issue, he “reserved the right to
produce the relevant extracts from his bank account, which are not provided
hereto for procedural economy only.”
20.
What is more, the payment of EUR 86,215 made on 8 September 2010 by the
club was also not specified by the club, but the player states that this payment
corresponds to the remaining balance of his salary for July 2010, the salary for
August 2010 and the first full instalment of the bonus for the 3rd place in the
2009/2010 season (EUR 55,000). Considering that the payment of EUR 49,020
was also not specified by the club, but was made on 2 May 2011, i.e. close to
30 May 2011, the player argues that this payment corresponded to the second
instalment of the bonus for the 3rd place in the 2009/2010 season (EUR 55,000).
The player outlines that Club V asserts that those payments consist of salary
payments, however, it does not submit any proof thereof.
21.
In addition, the player denies having received any payments in advance
regarding his remuneration for the season 2011/2012. Therefore, the player
concludes that Club V paid him EUR 247,113 (EUR 269,998 – the winning
premiums) “in terms of wages and bonuses for 3rd place during the 2010/11
season, when he was entitled to receive from [Club V] EUR 450,000 net by 15
June 2011”. Therefore, the player deems that Club V still owes him the amount
of EUR 202,887.
Club V, from country R / Player K, from country S / Club L, from country P
7/17
22.
What is more, according to the player, Club V had no reason to retain salary,
alleging that all disciplinary sanctions are based on the club’s internal
regulations and Club V did not provide FIFA with any statement of charges
against him, no documents related to the decision-making process, no
invitations for the player to present his position or attend the meetings or any
proof that such penalties are indeed in accordance with Club V’s internal
regulations or with the principle of proportionality. Therefore, the player
claims that these fines are not enforceable. In addition, the fact that they were
never deducted from the player’s salaries, created a legitimate belief for the
player that those penalties were not applicable.
23.
As to the sanction imposed on the player on 25 May 2009 for alleged poor
performance, not only is it not accompanied by any documentation, it can
anyhow not be a ground to impose sanctions and, according to art. 25 par. 5
of the FIFA Regulations, its application is no longer possible since more than 2
years have elapsed since the decision. The fine applied on 28 July 2010, due to
the player’s alleged unauthorized absence as from 7 June until 29 June 2010, is
also not enforceable, since the player was fulfilling his duties during the FIFA
2010 World Cup.
24.
As to the sanction of January 2011, the player asserts he requested a “special
3-day leave” due to the birth of his child which request was initially granted by
the coach of Club V, but later on revoked. As a result, on 14 January 2011, Club
V imposed a 3 month ban on the player. However, by selecting the player for a
match on the 28th of February 2011, Club V tacitly renounced to the imposition
of such sanction.
25.
Then, in the end of the 2010/2011 season, Club V again finished third in the
country R League and thus the amount of EUR 120,000 fell due on 21 May
2011 (date on which the last game of the country R League was played).
26.
In conclusion, the player claims that he terminated the contract with just
cause, since the considerable amount of EUR 202,887 is still due to him and,
thus, Club V is not entitled to any compensation. In addition, Club V has not
provided any evidence of the transfer amount paid for the player to his former
club, Club Z, nor of the engagement of another player with the exclusive
purpose of replacing him.
27.
Finally, the player lodged a counterclaim against Club V and requested
payment of the total amount of EUR 222,887, plus 5% interest as from 16 June
2011, calculated as follows:
-
EUR 212,887 as outstanding remuneration;
Club V, from country R / Player K, from country S / Club L, from country P
8/17
-
EUR 10,000 corresponding to his partial salary for 15 days of June 2011;
EUR 10,000 as compensation for breach of contract, corresponding to
his partial salary as from 16 to 30 June 2011, since he managed to
mitigate most of his losses once he signed with Club L on 1 July 2011.
28.
In its reply, Club L rejects Club V’s claim for inducement to breach of contract.
Club L claims having signed a contract with the player on 1 July 2011, after
having been informed by the latter that his contract with Club V had been
terminated with just cause. In this respect, Club L claims having been provided
by the player with copies of his reminders sent to Club V on 24 January 2011, 2
February 2011, 21 February 2011 and 25 May 2011 as well as with the
termination letter of 14 June 2011. Therefore, Club L was “justifiably
convinced that there was a just cause of termination (…)”.
29.
Club L further states that, by the time the contract was signed, it was not
informed by the player of any penalties imposed on him and the player himself
claimed to be unaware of the existence of such penalties. Club L points out
that such penalties were fabricated by Club V in order to justify the existence
of debts, and do not represent the outcome of due and legal proceedings.
30.
In addition, Club L observed that, in particular the penalties imposed on 7 June
2010 and 28 July 2010 are unjustified; the penalty of 7 June 2010 was imposed
on the player for allegedly talking on the phone during the break of a match
and for having left Club V without authorization on 17 May 2010. The penalty
of 28 July 2010 was imposed on the player for allegedly having left the club
without authorization for 3 weeks as from 18 June 2010 until 9 July 2010. Club
L pointed out that the player was a member of the country S national team
during the 2010 World Cup and, as such, was officially allowed to be absent
from his club between 17 and 23 May 2010, established in the FIFA Circular no.
1170 as the rest period for the players on the provisional list. In addition, FIFA’s
Executive Committee decided that the preparation phase for the 2010 FIFA
World Cup would be between 24 May and 10 June 2010. As from 18 June to 9
July 2010, the player was participating in the 2010 World Cup.
31.
Therefore, Club L deems that the penalties imposed on the player did not only
violate the principle of due process, but were also unjustified. In addition, Club
L points out that the amounts established in those penalties were never
deducted from the player’s salary, and by doing so, Club V tacitly renounced to
the imposition of such sanctions.
32.
Thus, Club L deems that, in view of the fact that by the time of termination
Club V had outstanding debts towards the player in a considerable amount
and considering the fact that the penalties imposed on him, corresponding to
Club V, from country R / Player K, from country S / Club L, from country P
9/17
more than 40% of his remuneration, are either not proved or not justifiable,
Club V is not entitled to any compensation. Finally, Club L pointed out that the
replacement player was transferred in 2010, meaning that there is no
connection with the termination of the contract by the player in 2011.
33.
In its reply to the counter-claim, Club V sustains the following:
i)
For the period 15 June 2010 until 15 June 2011, the financial terms of the
contract were replaced by the financial terms of the Addendum. Hence,
the player was, during the 2010/2011 season, only entitled to EUR
240,000 divided in 12 installments of EUR 20,000.
ii) Since the player had a history of disciplinary problems, the parties had
agreed that the amount of EUR 110,000, possibly due for the season
2009/2010, would only be paid if the player would comply with the
internal regulations of the club. Equally, the club would have refrained
from applying the disciplinary decisions which had already been taken
but not yet implemented, provided that the player would respect the
internal regulations. However, in January 2011, the player again returned
late to the training camp (two weeks) and therefore the club was “forced
to enforce some of the decisions taken previously”.
iii) As to the decision in relation to the 2010 FIFA World Cup, the club holds
that the player was obviously not sanctioned for partaking in said
tournament; however, he was supposed to return to Club V 48 hours
after the last game played (28 June 2010 vs The Netherlands).
Nevertheless, the player only returned on the 2nd of August 2010 and, as
a consequence, the club had to replace him with another goalkeeper
who signed a contract on 15 July 2010, “e.g. much before the not
expected anymore return of Player K.”
iv) All the mentioned disciplinary decisions were accepted by the player and
admitted on the occasion of the negotiations leading to the signature of
the Addendum.
v) As to the sum of EUR 212,887 allegedly due to the player, the club holds
that the player mistakenly deems that when he left Club V he was
entitled to EUR “460,000” (EUR 220,000 wages representing 11 x EUR
20,000, EUR 110,000 representing the bonus for the season 2009/2010
and EUR 110,000 representing the bonus for the season 2010/2011).
However, as previously mentioned, the player lost his right to receive the
bonuses for the 2009/2010 and 2010/2011 season, “so that the he was
basically entitled to a total of 10 months (and not 11) of 20,000 Euros
Club V, from country R / Player K, from country S / Club L, from country P
10/17
when he has decided to rescind his contract”. At that time, the club
already paid currency of country R 1,134,350 corresponding to almost
EUR 270,000 leaving a balance of more than EUR 60,000 in favour of the
player.
vi) The amounts paid on 2 and 18 May 2011 were advance payments and
thus the club paid the player more than he was entitled to, due to the
fact that the player asked for various advance payments, inter alia, for his
wedding, the birth of his child and medical treatment for his wife.
vii) Finally, the club provided a list of payments the club sustained to have
made to the player in the 2008/2009 season (EUR 304,407) and 2009/2010
season (EUR 269,995).
34.
According to the contract signed between the player and Club L, the player
was entitled to the total amount of EUR 770,000 plus bonuses.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or 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 8 July 2011. Consequently, the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 of the 2008 and 2012 editions 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 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 R club opposing a country S
player and a country P club.
3.
Furthermore, the Chamber analysed which 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 (editions 2010 and 2012), and considering that the claim
was lodged in front of FIFA on 8 July 2011, the 2010 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
Club V, from country R / Player K, from country S / Club L, from country P
11/17
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber
started by acknowledging the above-mentioned facts as well as the
documentation contained in the file. However, the Chamber emphasised that
in the following considerations it will refer only to the facts, arguments and
documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
First of all, the members of the Chamber acknowledged that, on 7 June 2008,
the player and Club V concluded an employment contract as well as a financial
appendix valid as from 15 June 2008 until 15 June 2011 and that, on 2 August
2010 the parties had signed an “Addendum to the contract”.
6.
In continuation, the Chamber pointed out that it is undisputed between the
parties on 14 June 2011, the player terminated his contract with Club V in
writing, invoking just cause. As a reason for terminating the employment
relationship, the player indicated that Club V did not fully comply with the
financial provisions of the contract “and particularly has not been remitting
contractually agreed financial obligation in proper manner.” In this respect,
the player also referred to the default letters sent by his legal representative.
7.
With due consideration to the above, the Chamber noted that Club V asserts
that, at the time of the termination of the contract by the player, it had
complied in full with its contractual obligations. Club V stated that after
having received several notifications from the player, it replied on 31 May 2011
specifying that the amounts claimed by the player were not due and that it
had paid the amount of currency of country R 1,134,350, which corresponds to
EUR 269,995. What is more, Club V explained that it had even made two
payments in advance for the 2011/2012 season, more specifically, the payments
of currency of country R 200,000 on 2 May 2011 and currency of country R
80,000 on 18 May 2011. Also, Club V indicated that various fines were imposed
on the player.
8.
As a result, Club V insists that the player terminated the contract without just
cause and lodged a claim in front of FIFA against the player and his new club,
Club L, for breach of contract without just cause and inducement to breach of
contract, requesting payment of the total amount of EUR 429,221.
9.
The player, on the contrary, deems that he had a just cause to terminate the
contract stating that he always had to face delays in the payment of his
remuneration and that, by the time of termination of the contract, the
amount of EUR 450,000 should have been paid for the season 2010/2011,
Club V, from country R / Player K, from country S / Club L, from country P
12/17
notwithstanding the winning premiums. Nevertheless, the club had only paid
him the amount of EUR 269,995.
10.
In this respect, the Chamber noted that the fundamental issue in the present
matter is to analyse whether or not the player had a just cause to terminate
the contract with the club on 14 June 2011. In this regard, the Chamber had to
analyse whether, as alleged by the player, Club V had not complied with its
financial obligations to the extent that it could no longer be reasonably
expected from the player that he would continue to render his services to Club
V. In order to address this issue, the Chamber first had to examine to which
amounts the player was entitled during the 2010/2011 season.
11.
The Chamber acknowledged that the parties have divergent views in this
respect; whereas the player deems that the “Addendum to the contract” was
an additional document merely changing the payment schedule of the
financial terms of the employment contract, and thus arguing that the amount
of EUR 120,000 due as a bonus in case the club reaches the 3rd, 4th of 5th place
in Liga 1 was payable, Club V vehemently rejected such allegations indicating
that this particular bonus payment was deleted from the contract by means of
the aforementioned addendum.
12.
After a thorough analysis of both the employment contract as well as the
“Addendum to the contract”, the Chamber came to the unanimous conclusion
that the “Addendum to the contract” in fact replaced the financial terms of
the employment contract. The Chamber stressed that the “Addendum to the
contract” re-scheduled the payment of the salaries in the amount of EUR
240,000 for the 2011/2011 season, extended the contractual relationship for
another season and specified the payment schedule of the bonus of the
2009/2010 season, but did not mention anything in relation to the bonus of
the amount of EUR 120,000 for the 2010/2011 season in case the club reaches
the 3rd, 4th of 5th place in Liga 1. In view of the foregoing and in absence of any
provision stipulating the contrary, the DRC is satisfied that the “Addendum to
the contract” in fact replaced the financial terms of the 2010/2011 season
stipulated in the employment contract and that, therefore, the pertinent
bonus payment was indeed deleted from the contract, as sustained by Club V.
13.
What is more, the Chamber observed that the player argued that the “winning
premiums” as specified for the 2008/2009 season also applied to the 2009/2010
and 2010/2011 season. However, in absence of any specific contractual
stipulation to this regard, the Chamber rejected this argument.
14.
On account of the above, the Chamber concluded that, for the 2010/2011
season, the player was entitled to the amount of EUR 350,000, payable as
follows:
Club V, from country R / Player K, from country S / Club L, from country P
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-
EUR 240,000 payable in 12 instalments of EUR 20,000;
EUR 55,000 payable on 31 December 2010;
EUR 55,000 payable on 30 May 2011.
15.
Having established the above, the Chamber examined the amounts the player
had effectively received during the 2010/2011 season. In this respect, the
Chamber duly noted that up until the termination of the contract by the
player, the club had paid, on various dates, the total amount of EUR 269,995 to
the player. In this respect, the Chamber wished to point out that Club V, by
paying seemingly random amounts on arbitrary dates without specifying for
which contractual component each payment was made, is responsible for any
confusion in relation to the payments received by the player. Furthermore, and
in this context, the Chamber did not find it credible that two payments were
made for the following season. In any case, this allegation of Club V was not
supported by any documentary evidence and the payment receipts issued in
this respect did not support such argumentation. Therefore, the Chamber
decided that the payments made in the amounts of currency of country R
200,000 on 2 May 2011 and currency of country R 80,000 on 18 May 2011,
should be allocated to the 2010/2011 season.
16.
What is more, in relation to the sanctions imposed by the club on the player
for the violation of the “Inner Order Regulations”, the Chamber determined
that it could not accept such sanction since i) the relevant violation had not
been proven by Club V since no evidence had been submitted in this respect,
and ii) such sanction was manifestly disproportionate considering the amounts
the player was sanctioned with as well as that the bonus had already been
earned in the 2009/2010 season.
17.
Thus, the Chamber concluded that, on 14 June 2011, when the player
terminated his contract, he should have received the amount of EUR 330,000
(EUR 350,000 – the salary of June 2011 in the amount of EUR 20,000) and the
player had only received the amount of EUR 269,995, leaving a balance of EUR
60,005 which corresponds to more than three monthly salaries.
18.
Having taken into consideration all the previous considerations, the Chamber
decided that it could be established that the Respondent had seriously
neglected its contractual obligations towards the player in a continuous and
constant manner, i.e. Club V had failed to remunerate the player for a
substantial period of time. Therefore, the Chamber considered that Club V was
found to be in breach of the employment contract and that the breach was of
such seriousness that, in line with the Chamber’s long-standing and wellestablished jurisprudence, the player had a just cause to unilaterally terminate
Club V, from country R / Player K, from country S / Club L, from country P
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the contractual relationship with Club V on 14 June 2011, having previously
put Club V in default of payment of the outstanding amounts.
19.
On account of the above, the Chamber established that the player had
terminated the employment contract with just cause on 14 June 2011 and that,
consequently, Club V is to be held liable for the early termination of the
employment contact with just cause by the player. Subsequently, the Chamber
went on to deal with the consequences of the early termination of the
employment contract with just cause by the player.
20.
In this respect and first of all, the Chamber concluded that the claim lodged by
Club V had to be rejected.
21.
Furthermore, the members of the concurred that Club V must fulfill its
obligations as per employment contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the Chamber decided that
Club V is liable to pay to the player the remuneration that was outstanding at
the time of the termination of the contract i.e. the amount of EUR 60,005
corresponding to the remaining payments for the 2010/2011 season.
22.
In continuation, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations, the player is entitled to receive from Club V
compensation for breach of contract in addition to any outstanding salaries on
the basis of the relevant employment contract.
23.
In this context, the Chamber outlined that, in accordance with said provision,
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,
and depending on whether the contractual breach falls within the protected
period.
24.
In application of the relevant provision, the Chamber held that it first of all
had to clarify whether the pertinent employment contract contained any
clause, by means of which the parties had beforehand agreed upon a
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.
Club V, from country R / Player K, from country S / Club L, from country P
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25.
Having recalled the aforementioned, the Chamber reverted to the player’s
claim for compensation for breach of contract, and acknowledged that the
latter was claiming the amount of EUR 20,000 corresponding to his salary for
the month of June 2011. In this regard, and in view of the criteria mentioned
in art. 17 of the Regulation as recalled above, in particular the remaining value
under the contract as from its premature termination, as well as considering
that the player did not yet have another employment relationship with a new
club in June 2011, the Chamber decided that Club V must pay the amount of
EUR 20,000 to the player, as compensation for breach of contract.
26.
As a consequence, the DRC decided that Club V is liable to pay the total
amount of EUR 80,005 to the player, consisting of the amount of EUR 60,005
corresponding to the player’s outstanding remuneration at the time of the
unilateral termination of the contract by the player and the amount of EUR
20,000 corresponding to compensation for breach of contract.
27.
In continuation and with regard to the Claimant's request for interest, the
Chamber decided that the player is entitled to receive interest at the rate of
5% p.a. on the amount of EUR 60,005 as from 16 June 2011 and on the
amount of EUR 20,000 as from 31 October 2013.
28.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the player is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Club V, is rejected.
2.
The claim of the 1st Respondent / Counter-Claimant, Player K, is partially
accepted.
3.
The Claimant / Counter-Respondent has to pay to the 1st Respondent / CounterClaimant, within 30 days as from the date of notification of the present
decision, outstanding remuneration in the amount of EUR 60,005 plus 5%
interest p.a. on said amount as from 16 June 2011 until the date of effective
payment.
4.
The Claimant / Counter-Respondent has to pay to the 1st Respondent / CounterClaimant, within 30 days as from the date of notification of the present
decision, compensation for breach of contract in the amount of EUR 20,000
plus 5% interest p.a. on said amount as from 31 October 2013 until the date of
effective payment.
Club V, from country R / Player K, from country S / Club L, from country P
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5.
In the event that the amounts due to the 1st Respondent / Counter-Claimant in
accordance with the above-mentioned numbers 3. and 4. are not paid by the
Claimant / Counter-Respondent within the stated time limits, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee
for consideration and a formal decision.
6.
Any further claim lodged by the 1st Respondent / Counter-Claimant is rejected.
7.
The 1st Respondent / Counter-Claimant is directed to inform the Claimant /
Counter-Respondent immediately and directly of the account number to which
the remittances are to be made and to notify the Dispute Resolution Chamber
of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Club V, from country R / Player K, from country S / Club L, from country P
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Secretary General
Encl. CAS directives
Club V, from country R / Player K, from country S / Club L, from country P
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