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 W, from country P
as Claimant
against the club,
Club A, from country C
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
Facts relating to the preliminary issue on the competence of the DRC:
1.
On 16 January 2011, Player W, from country P (hereinafter: the Claimant), and
Club A, from country C (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid as from the date of signature until 31
May 2012.
2.
Article 17 of the contract stipulates that “If the player shall be guilty of serious
misconduct or the disciplinary Rules of the Club or the terms and conditions of
this Agreement, the Club may, on giving notice to the player by recorded
delivery letter, stating the full reasons for the action taken, terminate this
Agreement. Such action shall be subject to the player’s right of appeal as follows:
17.1. to the Dispute Resolution Chamber established to the country C Football
Association; 17.2. to any tribunal or labour Court in country C; 17.3. to FIFA and
its competent departments; 17.4. to the Court of Arbitration in Lausanne”.
3.
In addition, art. 37 of the contract stipulates that “Any dispute between the
parties should be submitted exclusively to the court of arbitration of sports”.
4.
The Respondent, based on art. 17 of the employment contract, rejected FIFA’s
jurisdiction over the present dispute in favour of the Dispute Resolution Chamber
of the country C Football Association.
5.
In this respect, the Respondent provided FIFA with a copy of the 2005 edition of
the country C Football Association’s “Regulations for the registration and
transfer of football players”, which establish the following:
a. with regard to the jurisdiction of the Dispute Resolution Committee
(hereinafter: the Committee):
According to art. 22.11 of the Regulations of the country C Football
Association, the Committee is competent to “adjudicate and/or resolve any
financial or other disputes which may arise: a) between clubs and nonamateur players […]”.
b. with regard to the composition:
Art. 22.1 par. 1 of the Regulations of the country C Football Association
establishes that the Committee consists of five members (Chairman, ViceChairman, three members). The Chairman, Vice-Chairman and one member
are elected by the Executive Committee of the country C Football
Association, whereas two members are elected by the country P Football
Players’ Association.
c. with regard to the possibility of an appeal:
Player W, from country P / Club A, from country C
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Concerning the possibility of an appeal against a decision taken by the
Committee, art. 22.10 stipulates that “any decision of the [Committee] may
be appealed to the Disciplinary Authority of the country C Football
Association. The Disciplinary Authority shall finally decide on the appeals
referred thereto”.
6.
The Claimant, however, insists on the competence of the DRC over the present
case, as the NDRC in country C cannot be considered as an independent
arbitration tribunal guaranteeing fair proceedings and respecting the principle
of equal representation of players and clubs.
Facts relating to the substance of the matter:
7.
The contract signed between the parties on 16 January 2011 was valid until 31
May 2012.
8.
According to art. 30 and 31 of the contract, the Claimant shall be entitled to:
- EUR 43,750 as remuneration for the 2010/2011 season, payable in five equal
installments of EUR 8,750, as of 31 January 2011 until 31 May 2011, with a
period of grace of 30 days;
- EUR 87,500 as remuneration for the 2011/2012 season, payable in ten equal
installments of EUR 8,750, as of 30 August 2011 until 31 May 2012, with a
period of grace of 30 days;
- bonuses, according to the club’s internal regulations.
9.
Article 9 of the contract stipulates that “The player shall promptly submit so far
as is a reasonable at the expense of the club to such medical examination as the
club shall deem necessary and shall undergo such treatments as may be
prescribed by the club’s medical advisers. All injuries and / or sickness shall be
reported by the player to the club immediately and the club will record these in
an injury register. Dental treatment shall not be covered by the club”.
10.
In addition, art. 35 of the contract establishes that “during the player’s illness
Club A shall pay to him full salary. If the period of the player’s illness lasts longer
than three months or it is by an adequate medical examination confirmed that
despite the efforts of the club the disability is not curable, Club A may terminate
this contract without any obligation to pay compensation or damages to the
player”.
11.
By means of its correspondence dated 25 July 2011, the Respondent terminated
the contract with the Claimant with immediate effect, as per art. 35 of the
contract (cf. point I.10. above), based on the fact that he had “not been able to
Player W, from country P / Club A, from country C
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join the team and/or attend at any special sport training in accordance with the
instruction given by the club nor even report to the club about the progress of
your situation”.
12.
On 10 October 2011, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting, after amending his claim, the
payment of the total amount of EUR 97,622, made up of:
- EUR 87,500 as compensation for breach of contract;
- EUR 5,872 as reimbursement of medical expenses;
- EUR 4,250 as rent costs for April 2011 until August.
13.
In his claim, the Claimant states having suffered a spine injury on 11 April 2011,
during his professional activity, which hindered him from playing. Because of the
aforementioned injury, the Claimant had to undergo spinal surgery and
subsequent rehabilitation in country P.
14.
While in treatment, the Claimant states having remained in constant contact
with the Respondent, which was aware of his medical condition. Upon request of
the Respondent, the Claimant returned to country C on 3 June 2011 to attend a
series of medical tests conducted in order to assess his health condition. As a
consequence of the long trip from country P to country C and back, the
Claimant’s condition deteriorated and he had to undergo new surgery.
15.
The Claimant claims that, in the course of his therapy and in spite of the medical
prohibition to resume his professional activities, the Respondent terminated the
contract on 25 July 2011 with immediate effect, based on its art. 35. According to
the Claimant, the aforementioned article shall be considered invalid, as it creates
for the Respondent an arbitrary possibility of unilateral termination in case an
injured player is not able to play for more than three months. In addition, said
article does not constitute a just cause, in the light of art. 14 of the Regulations
on the Transfer and Status of Players.
16.
By means of his correspondence dated 22 August 2011, the Claimant requested
that the Respondent should proceed with the payment of the total amount of
EUR 185,122, by no later than 6 September 2011, as compensation for the
unilateral termination of the contract. The Respondent allegedly never
responded to this correspondence.
17.
In its response to the claim of the Claimant, the Respondent explained that on 12
April 2011 the Claimant was diagnosed by the club’s doctor with a spinal injury
consisting of a “mild posterior displacement and some irritation on the
descending nerve root” and that subsequently, on 28 April 2011 he underwent
surgery in country P. On 3 June 2011, the Claimant returned to country C, when
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he was again examined by the club’s doctor, who recommended personal
training until he would be able to join the rest of the team.
18.
On 13 June 2011, however, the Claimant underwent a new surgery in country P,
after which his doctor recommended that he should follow a rehabilitation
program for 2 months.
19.
By means of its e-mail of 16 June 2011, the Respondent requested that the
Claimant resume trainings with the team on 20 June 2011 in country O, where he
would also continue his recovery. Should the Claimant fail to be present in
country O on 20 June 2011, the Respondent would proceed with the termination
of the contract. In response to the Respondent’s letter, the Claimant’s doctor in
country P replied on 18 June 2011 that it was “too early to send right now my
patient to continue his postoperative treatment in country O” and that he would
be able “to join your kind invitation in a few weeks”. The Respondent, however,
insisted that the Claimant should be present in country O on 20 June 2011.
20.
On 1 July 2011, the Claimant’s doctor stated that “I think / I hope and wish him /
he will start his special sport training – improvising it step by step – from the half
of this month / July”. On 25 July 2011, however, the Claimant had not yet
presented himself at the club’s premises and, thus, the Respondent terminated
the contract in writing with immediate effect.
21.
The Respondent claims to have had just cause to terminate the contract and that
such termination was executed in accordance with art. 35 of the contract (cf.
point I.10. above), the content of which was mutually agreed and accepted by
the parties to the contract, when the latter was signed.
22.
Therefore, the Respondent considers that the Claimant breached the contract
without just cause and, therefore, shall not be entitled to receive any
compensation from the club. In addition, the Respondent claims that the
Claimant should bear all legal expenses as well as any procedural costs due in the
present dispute.
23.
In his replica, the Claimant insists on the invalidity of art. 35 of the contract, as it
is of arbitrary nature, and on his argument that an injury does not constitute a
just cause to terminate an employment contract, as per art. 14 of the Regulations
on the Status and Transfer of Players.
24.
The Claimant further claims having always complied with his contractual
obligations and insists on the fact that his return to country C by plane on 3 June
2011, after his spinal surgery, considerably deteriorated his health condition to
the point that he had to undergo new surgery on 13 June 2011. In this regard,
Player W, from country P / Club A, from country C
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the Claimant provides a copy of a medical certificate dated 30 June 2011,
according to which, inter alia, “the patient will be able to take long trips,
including flights, after 2 months from the second surgery”. Therefore, he was not
able to join the team in country O after the second surgery. However, the
Respondent was constantly informed of the progress of his health situation.
25.
Furthermore, the Claimant claims having borne all the costs of his surgeries and
claims that the Respondent had no intention to continue the cooperation with
him, and therefore used his injury as an excuse to terminate the contract without
paying him any compensation.
26.
In its duplica, the Respondent claims having always paid the Claimant’s salaries
during his absence and having provided him with appropriate treatment.
Therefore, the Respondent deems to have complied with its obligation to
support the Claimant in case of an injury acquired during the exercise of his
professional activities.
27.
The Respondent insists on the fact that the Claimant failed to maintain regular
contact with it during his recovery and that he only reacted to the termination of
the contract one month after the beginning of the new season.
28.
The Claimant claims not having signed any new employment contract since the
termination of his contract with the Respondent.
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 matter at stake.
In this respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules). The present matter was submitted
to FIFA on 10 October 2011. Therefore, the Chamber concluded that the edition
2008 of the Procedural Rules is applicable to the matter at hand (cf. art. 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 b) of the Regulations on the Status and Transfer of
Players (edition 2012; hereinafter: the Regulations), the Dispute Resolution
Chamber shall adjudicate on employment-related disputes between a club and a
player, with an international dimension.
Player W, from country P / Club A, from country C
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3.
Having said that, the DRC stated that it would, in principle, be the competent
body to decide on the present litigation involving a country P player and a
country C club regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that any dispute arisen between the parties should be submitted to the
deciding body of the country C Football Association.
5.
The Chamber equally noted that the Claimant rejected such position and insisted
on the fact that FIFA had jurisdiction to deal with the present matter as he
deems that the Dispute Resolution Chamber of the country C Football
Association cannot be considered as an independent arbitration body
guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs.
6.
Taking into account the above, the Chamber emphasised that, in accordance
with art. 22 lit. b) of the 2010 FIFA Regulations, it is competent to deal with a
matter such as the one at hand, unless an independent arbitration tribunal,
guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs has been established at national level within
the framework of the association and/or a collective bargaining agreement. With
regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no.
1010 dated 20 December 2005. In this regard, the members of the Chamber
further referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on
1 January 2008.
7.
While analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
actually contained a jurisdiction clause.
8.
Having said this, the members of the Chamber turned their attention to art. 17
of the contract, which stipulates that “If the player shall be guilty of serious
misconduct or the disciplinary Rules of the Club or the terms and conditions of
this Agreement, the Club may, on giving notice to the player by recorded
delivery letter, stating the full reasons for the action taken, terminate this
Agreement. Such action shall be subject to the player’s right of appeal as follows:
17.1. to the Dispute Resolution Chamber established to the country C Football
Association; 17.2. to any tribunal or labour Court in country C; 17.3. to FIFA and
its competent departments; 17.4. to the Court of Arbitration in Lausanne”.
Player W, from country P / Club A, from country C
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9.
In view of the aforementioned clause, the members of the DRC were of the
opinion that art. 17 of the employment contract does not make clear reference
to one specific national dispute resolution chamber in the sense of art. 22 lit. b)
of the aforementioned Regulations and even provides for the possibility of
lodging a contractual dispute in front of FIFA. Therefore, the members of the
Chamber deemed that said clause can by no means be considered as a clear
arbitration clause in favour of the Dispute Resolution Chamber of the country C
Football Association and, therefore, cannot be applicable.
10.
Having established the above, the Chamber deemed it unnecessary to examine
any further points which would need to be assessed with regard to the
competence of a national deciding body.
11.
In view of the above, the Chamber established that the Respondent’s objection
to the competence of FIFA’s DRC to deal with the present matter had to be
rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter
as to the substance.
12.
Subsequently, the members of the Chamber 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 (editions 2010 and 2012) and considering that the claim in front
of FIFA was lodged on 10 October 2011, the 2010 edition of said Regulations is
applicable to the present matter as to the substance.
13.
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 to acknowledge the facts of the case as well as the documents
contained in the file.
14.
In this respect, the members of the DRC acknowledged that it was undisputed by
the parties that, on 16 January 2011, they signed an employment contract, valid
until 31 May 2012.
15.
In addition, the DRC took note of the fact that it is also undisputed by the parties
that the contract was terminated by the Respondent on 25 July 2011, in writing,
based on art. 35 of the contract.
16.
The DRC further noted that, on the one hand, the Claimant claims that the
Respondent terminated the contract unilaterally and without just cause, during
the course of his medical treatment, following an injury acquired while playing.
The Claimant further claims having been in constant contact with the
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Respondent during his treatment in country P. Furthermore, he maintains that
the Respondent repeatedly requested his return to the club in order to resume
training, in spite of being aware of the fact that he would not be able to do so,
as he was still under treatment and unfit to play. Moreover, the Claimant
considers that art. 35 of the contract, upon which the Respondent bases the
termination, should be considered as invalid, since it is unilateral and arbitrary.
17.
Based on the aforementioned, the Claimant deems that the Respondent
terminated the contract unilaterally and without just cause, and requests the
payment of the total amount of EUR 97,622, made up of EUR 87,500 as
compensation for breach of contract; EUR 5,872 as reimbursement of medical
expenses; and EUR 4,250 as rent costs for April 2011 until August 2011.
18.
Subsequently, the DRC noted that, on the other hand, the Respondent rejects the
Claimant’s allegations and insists on the fact that it terminated the contract with
just cause, based on art. 35 of the contract, the content of which was agreed
upon and accepted by both parties. In this regard, the Respondent makes
reference to the entire exchange of correspondence with the Claimant’s doctor
in country P, in particular to his e-mail of 1 July 2011, in which he stated that the
player would probably be able to resume training within the following 2 weeks.
In addition, the Respondent claims to have paid all the Claimant’s salaries during
his treatment. As the Claimant had not yet returned to the club on the 25 July
2011, the Respondent deemed that he breached the contract without just cause
and, therefore, it terminated the contract with immediate effect on said date.
19.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant and the
allegations of the Respondent, was to determine whether the employment
contract had been unilaterally terminated with or without just cause by the
Respondent, and which party was responsible for the early termination of the
contractual relationship in question. The DRC also underlined that, subsequently,
if it were found that the employment contract had been breached by one of the
parties without just cause, it would be necessary to determine the consequences
for the party that caused the unjust breach of the relevant employment contract.
20.
In view of the aforementioned arguments of both parties, the Chamber decided
to first focus its attention on the analysis of the content of art. 35 of the
contract, upon which the Respondent bases the termination and which the
Claimant considers invalid.
21.
In this respect, the DRC deemed it important to recall the wording of art. 35 of
the contract, which stipulates that “during the player’s illness Club A shall pay to
him full salary. If the period of the player’s illness lasts longer than three months
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or it is by an adequate medical examination confirmed that despite the efforts of
the club the disability is not curable, Club A may terminate this contract without
any obligation to pay compensation or damages to the player”.
22.
At this point, the Chamber deemed it appropriate to analyse the question of
whether such clause inserted in an employment contract could be considered
valid. In this regard, the Chamber emphasized that, in accordance with its wellestablished jurisprudence, an injury or health condition of a player cannot be
considered as a valid reason to cease the payment of a player’s remuneration
and even less so to terminate an employment contract.
23.
In this context, the DRC noted that art. 35 of the contract entitled the
Respondent to unilaterally terminate the contract with the Claimant in case the
latter fell ill for more than three months or permanently, without paying him
any compensation. After analysing the content of the aforementioned article,
the Chamber deemed that the application of such rule was not acceptable, due
to its unilateral nature and being to the benefit of the Respondent only.
24.
In view of the foregoing, the Chamber was of the unanimous opinion that art. 35
of the contract could not be validly invoked by the Respondent in order to
terminate the contract on 25 July 2011 and that, consequently, the respective
argumentation of the Respondent could not be upheld by the DRC.
25.
Subsequently, the Chamber focused its attention on the Respondent’s allegation
according to which the Claimant had breached the contract by not having
resumed training with the club on 25 July 2011, and after the Respondent had
warned him, by means of its e-mail of 16 June 2011, that should he fail to be
present in country O on 20 June 2011, it would terminate the contract.
26.
At this point and for the sake of good order, the Chamber recalled the basic
principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural
Rules, according to which a party claiming a right from an alleged fact shall carry
the respective burden of proof.
27.
In this respect, the Chamber deemed that the Respondent bore the burden of
proof regarding the alleged breach of contract on the part of the Claimant and
the consequent alleged existence of just cause for the Respondent to unilaterally
terminate the contract.
28.
In this context, the members of the DRC deemed it important to focus their
attention on the analysis of the pieces of evidence provided by the parties, in
particular, on the correspondence exchanged between the Claimant’s physician
and the Respondent.
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29.
In this regard, the Chamber first took note of the fact that both parties
acknowledge that on 13 June 2011 the Claimant underwent a second spinal
surgery.
30.
The DRC equally noted that, after the Respondent’s e-mail of 16 June 2011,
requesting that the Claimant resume training on 20 June 2011, the Claimant’s
physician replied to such e-mail on 18 June 2011 explaining that it was “too early
to send right now my patient to continue his postoperative treatment in country
O” and that he would be able “to join your kind invitation in a few weeks”.
31.
In continuation, the DRC referred to a medical certificate dated 30 June 2011
provided by the Claimant, according to which, inter alia, “the patient will be
able to take long trips, including flights, after 2 months from the second
surgery”.
32.
The DRC further took note of the content of the e-mail of the Claimant’s
physician dated 1 July 2011, provided by the Respondent, in which the latter
states that “I think / I hope and wish him / he will start his special sport training –
improving it step by step – from half of this month / July”.
33.
After a thorough analysis of all the aforementioned documentation, the
Chamber focused its attention on the very particular choice of words of the
Claimant’s physician in his email of 1 July 2011, i.e. “I think / I hope and wish
[…]”. In this respect, the members of the DRC were of the opinion that such a
statement was not able to justify the Respondent’s alleged clear assumption that
the Claimant would for sure be able to resume training as from mid-July 2011,
but merely conveyed a possibility that was, however, not confirmed.
34.
In fact, the content of the medical certificate of 30 June 2011 corroborates the
aforementioned conclusion that the Claimant would most likely not be able to
join the Respondent’s training camp in July 2011.
35.
In addition, the aforementioned conclusions based on the analysis of the
documentation on file are consistent with the allegations of the Claimant,
according to which the Respondent terminated the contract in the course of his
medical treatment, in spite of being aware of the fact that he was not yet fit to
resume training and, consequently, to be present in country O in mid-July 2011.
36.
Finally, in view of the fact that all the previously analysed documentation is to be
found on file, having been provided by the parties, the Chamber also concluded
that the Respondent’s argument, as per which the Claimant failed to maintain
contact with it during his treatment, could not be sustained.
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37.
Bearing in mind all the foregoing considerations on art. 35 of the contract and
on the written evidence provided by the parties, the DRC deemed that the
Claimant was not to be held responsible for the alleged breach of contract
without just cause and, consequently, the contract was terminated by the
Respondent without just cause on 25 July 2011.
38.
Having established the aforementioned, the Chamber focused its attention on
the consequences of the termination of the contract without just cause on the
part of the Respondent. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant is entitled to receive from
the Respondent an amount of money as compensation for breach of contract in
addition to any outstanding payments on the basis of the relevant contract.
39.
Prior to establishing the amount of compensation for breach of contract due to
the Claimant by the Respondent, the DRC proceeded with the analysis of the
Claimant’s requests for the reimbursement of medical expenses in the amount of
EUR 5,872 and for the payment of rent costs for April 2011 until August 2011 in
the amount of EUR 4,250.
40.
Taking into account the Claimant’s first request for the reimbursement of
medical expenses and always bearing in mind the content of art. 12 par. 3 of the
Procedural Rules, the Chamber noted that the Claimant, in support of his
allegation to have borne all the costs for his health treatment, provided the
Chamber with copies of medical invoices dated 30 April and 17 June 2011, in the
total amount of currency of country P 22,300, corresponding approximately to
the amount requested by the Claimant in Euros.
41.
In addition, the Chamber referred the parties to art. 9 of the contract, according
to which “The player shall promptly submit so far as is a reasonable at the
expense of the club to such medical examination as the club shall deem necessary
and shall undergo such treatments as may be prescribed by the club’s medical
advisers. All injuries and / or sickness shall be reported by the player to the club
immediately and the club will record these in an injury register. Dental treatment
shall not be covered by the club”
42.
In view of the fact that the Claimant was able to provide the DRC with written
evidence of the payments made by him in relation to his medical treatment, that
the contract does provide for the possibility of such costs to be borne by the
Respondent, as well as the fact that the latter was – according to the
documentation on file – aware of the fact that the Claimant was following his
medical treatment in country P and never contested the treatment or the
payment of the expenses incurred by the Claimant in this connection, the
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Chamber concluded that the Respondent should be held responsible to
reimburse the Claimant the amount of EUR 5,872.
43.
With regard to the Claimant’s request for the payment of rent costs for April
until August 2011 and once again making reference to the principle of burden of
proof contained in art. 12 par. 3 of the Procedural Rules, the Chamber observed
that no written documentation whatsoever was provided by the Claimant in this
respect. Therefore, the DRC concluded that such request of the Claimant had to
be rejected.
44.
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 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.
45.
In application of the relevant provision, the Chamber held that it first of all had
to clarify as to whether the pertinent employment contract contains a provision
by means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. In this regard, the Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
46.
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
until 31 May 2012. The Chamber concluded that the amount of EUR 87,500
serves as the basis for the final determination of the amount of compensation
for breach of contract.
47.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the 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.
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48.
In this regard, the Chamber noted that, according to the Claimant’s allegation
and in accordance with the information contained in the Transfer Matching
System (TMS), the Claimant did not sign a new employment contract between 25
July 2011, i.e. the date of termination, and 31 May 2012, the expiry date of the
contract with the Respondent. Consequently, the Chamber concluded that no
deductions were to be made from the residual amount of the contract, payable
to the Claimant as compensation.
49.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 87,500 to the Claimant as compensation for breach of
contract.
50.
For all the above reasons, the DRC decided to partially accept the claim of the
Claimant and held the Respondent liable to pay the Claimant the amount of EUR
5,872 related to medical expenses, as well as the amount of EUR 87,500 as
compensation for breach of contract.
51.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further request filed by the Claimant is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player W, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club A, is ordered to pay to the Claimant, within 30 days as
from the date of notification of this decision, the amount of EUR 5,872 related to
medical expenses.
4.
The Respondent is ordered to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 87,500 as compensation
for breach of contract.
5.
If the aforementioned sums are not paid within the above-mentioned time limit,
an interest rate of 5% p.a. will apply on said amounts as of expiry of the above-
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mentioned time limit and the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for its consideration and a formal decision.
6.
Any further claims lodged by the Claimant are rejected.
7.
The Claimant is directed to inform the Respondent 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 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
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