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
Joaquim Evangelista (Portugal), member
Ivan Gazidis (England), member
on a matter between the player,
Player D, from country I
as Claimant / Counter-Respondent 1
and the club,
Club S, from country C
as Respondent / Counter-Claimant
and the club,
Club G, from country T
as Counter-Respondent 2
regarding an employment-related dispute arisen between the parties.
I.
Facts of the case
1.
On 6 January 2012, Player D, from country I (hereinafter: the player or Claimant) and Club
S, from country C (hereinafter: Club S or the Respondent) concluded an employment
contract (hereinafter: the contract), valid as from 1 July 2012 until 31 December 2014, as
well as a supplemental agreement.
2.
According to art. 5 of the contract, Club C had to pay the player the following
remuneration (all amounts are net):
a. Total salary over the entire duration of the contract: EUR 24,000,000, to be paid in
monthly instalments of EUR 800,000 each, before the 30th of every month,
b. A signing-on fee of EUR 6,000,000, payable in two instalments of EUR 3,000,000
each, the first one within 28 days of the date of effectiveness of the contract, and
the second one 4 months after the date of effectiveness of the contract,
c. USD 5,000 as bonus for each winning match of the country C Super League,
d. USD 2,000 as bonus for each draw in the country C Super League,
these two bonus payments being due on the condition that the player plays more
than 45 minutes of the match in question. Should he be called as a substitute, he
shall receive half of the relevant bonus,
e. In the year 2012, if upon the player’s registration with the country C Football
Association Club C ranks between 1st and 3rd, the player will receive a bonus of
USD 100,000 if Club C wins the Championship of the country C Football League at
the end of the season: if Club S ranks 4th or thereafter, the player will receive a
bonus of USD 200,000,
f. In the years 2013 and 2014, the player will receive, for each year, a bonus of USD
200,000 if Club S wins the championship of the country C Super League, and a
bonus of USD 300,000 if Club S wins the Asian Champions League, provided that
the player is still a member of Club S at the time of the win.
3.
Art. 9.5. (2) of the contract stipulates:
“Party B [the player] may terminate this Contract by written notice to Party A [Club S] and
all amounts due according to this Contract until its expiration shall be immediately payable
to Party B, under one of the following circumstances:
(…)
(2) Party A fails to make payments due under this Agreement, if said failure is not
remedied within 28 days of notification thereof
(…)”.
4.
Art. 9.7. of the contract stipulates:
“If the Contract is unilaterally terminated by Party B [the player] without any proper
reason under this Contract, Party B shall compensate Party A [Club S] with Euro 12
million”.
Player D, country I / Club S, country C / Club G, country T
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5.
Art. 15.2. of the contract stipulates:
“Any dispute in respect of matters of football, discipline, or transfers shall be submitted by
either Party to the arbitration committee of FIFA, and shall be resolved according to FIFA
regulations”.
6.
Art. 17.6. of the contract stipulates:
“Matters uncovered in this contract shall be managed in accordance with the laws,
regulations, rules of PRC and relevant provisions of FIFA, which shall prevail over any other
regulations and rules, and country C Football Association provisions”.
7.
On 16 January 2013, the player terminated the contract in writing, alleging having just
cause to do so and referring to various default notice letters sent previously to Club S as
well as to art. 9. 5 (2) of the contract.
8.
On 28 January 2013, the player and the Club G, from country T (hereinafter: Club G),
concluded an employment contract valid as from 28 January 2013 until 30 June 2014.
According to the said contract, the player was entitled to the following amounts (all
amounts are net):
a.
b.
c.
d.
e.
f.
g.
2012-2013 season: EUR 2,000,000,
2013-2014 season: EUR 4,000,000,
Signing-on fee: EUR 4,000,000,
Guaranteed salary of EUR 15,000 per match in case he is fielded in the squad,
EUR 125,000 if the team wins the country T Super League in the season 2012-2013,
EUR 125,000 if the team wins the country T Super League in the season 2013-2014.
EUR 250,000 if the team qualifies for the final 16 in the UEFA Champions’ League
in the season 2013-2014,
h. EUR 250,000 if the team qualifies for the final 8 in the UEFA Champions’ League in
the season 2012-2013,
i. EUR 500,000 if the team qualifies for the final 8 in the UEFA Champions’ League in
the season 2013-2014.
9.
On 11 February 2013, following the refusal of the country C Football Association to issue
the player’s International Transfer Certificate (ITC), the Single Judge of the Players’ Status
Committee authorised the country T Football Federation to provisionally register the
player for Club G.
Player’s claim:
10.
On 27 January 2013, the player lodged a claim in front of FIFA against Club S, alleging that
he terminated the contractual relationship with the latter country C club with just cause
Player D, country I / Club S, country C / Club G, country T
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on 16 January 2013, and requesting outstanding remuneration as well as compensation in
the total amount of EUR 23,739,359.25 plus interest as follows:
Outstanding remuneration:
EUR 3,000,000 representing the second instalment of the signing-on fee,
EUR 6,982.16 as part of the salary of November 2012,
EUR 788,376.38 for the salary of December 2012,
EUR 406,903.94 for the salary of 16 days of January 2013,
Compensation:
in accordance with art. 9.5. (2) of the contract, residual value of the contract in the
amount of EUR 18,787,096.77,
EUR 750,000 as additional compensation for the economic loss regarding various
benefits agreed upon in the contract (over a period of 23 months),
Interest on all the above-mentioned amounts as from their respective due dates.
11.
Furthermore, and since the contractual breach occurred during the protected period, the
player left it at the discretion of the Dispute Resolution Chamber to determine whether
sporting sanctions should be imposed on Club S in accordance with art. 17 par. 4 of the
Regulations on the Status and Transfer of Players.
12.
In support of his claim, the Claimant gave the following account of the events leading up
to his unilateral termination of the contract.
13.
The player maintained that, although he acted with professionalism, Club S systematically
failed to honour its financial obligations towards him in a timely manner. In particular:
the 1st instalment of the signing-on fee in the amount of EUR 3,000,000, to be paid
by 28 July 2012, was only paid to him on 8 August 2012;
the salary of the month of July 2012, to be paid before 30 July 2012, was paid to him
in two instalments, i.e. one of EUR 100,000 on 8 August 2012 and the other one of
EUR 699,838 on 23 August 2012;
the salary of the month of August 2012 (EUR 800,000 minus a deduction in relation
to the costs linked to his accommodation), to be paid before 30 August 2012, was
only paid on 17 September 2012.
14.
The player further explained that on 12 October 2012, he addressed a letter to Club S
indicating that until that date he had not yet received his salary for the month of
September 2012, which should have been paid on 30 September 2012 at the latest, and
that such “chronic non-respect of the payment deadlines for his remuneration under the
employment contract (…) was a cause for concern” (free translation from French to
English). The player invited Club S to proceed to the payment of EUR 800,000 net
Player D, country I / Club S, country C / Club G, country T
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immediately upon receipt of the respective letter and indicated that the said letter was to
be considered as a formal notice in accordance with art. 9.5. (2) of the contract.
15.
On 1 November 2012, the player once again wrote to Club S in order to remind the latter
club of its arrears in the total amount of EUR 3,800,000 corresponding to the salary of the
month of October 2012 (EUR 800,000), due on 30 October 2012 at the latest, and the
second half of the signing-on fee (EUR 3,000,000) due on 1 November 2012.
16.
On 29 November 2012, the player informed Club S that up to date, it should have paid him
the total amount of EUR 3,788,376.38, i.e. EUR 788,376.38 relating to the salary of the
month of October 2012 and the 2nd instalment of the signing-on fee in the amount EUR
3,000,000. He thus granted Club S a final deadline until 3 December 2012 to proceed to the
payment of EUR 4,576,752.76, i.e. the aforementioned amount of EUR 3,788,376.38 as well
as EUR 788,376.38 for the salary of the month of November 2012.
17.
On 4 December 2012, the player pointed out to Club S that the payment of salary
constitutes a club’s primary obligation towards a player and that he was willing to grant
Club S until 8 December 2012 to proceed to all outstanding payments towards him.
18.
Once again, on 27 December 2012, the player wrote to Club S to grant the latter club a
deadline for payment of the relevant outstanding amounts until 1 January 2013 and
reminding Club S that on 30 December 2012, his salary of December 2012 in the amount of
EUR 788,376.38 would also fall due.
19.
On 31 December 2012, the player acknowledged receipt of a bank document according to
which Club S would have proceeded to the transfer of the amount of EUR 780,000,
corresponding to the salary of October 2012. The player, however, informed Club S that
the said amount was insufficient since his salary was of EUR 788,376.38. Furthermore, the
player reminded Club S of the terms of his correspondence dated 27 December 2012.
20.
On 15 January 2013, the player’s agent, Mr F, received an e-mail from the legal
representative of Club S, by means of which the latter club requested an additional 5
working days in order to proceed to the payment of EUR 3,000,000, alleging that “the
procedure is very complicated, the completion date was delayed a little bit”.
21.
On 16 January 2013, the player proceeded to the termination of the contract in writing,
referring to his various previous letters to Club S as well as to art. 9.5. (2) of the contract,
while pointing out yet again that his salary of December 2013 had not been paid.
22.
Finally, Club S indicated to the player by means of an e-mail that it regretted the player’s
decision and asked him to reconsider his position. Furthermore, Club S indicated that it
was putting a cheque of EUR 3,000,000 at the player’s disposal, which could be cashed by
the latter but only in a country C bank.
Player D, country I / Club S, country C / Club G, country T
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23.
In view of all the above-described facts, the Claimant deems that he had just cause to
terminate the contract, having duly notified the Respondent on multiple occasions of the
latter’s arrears in payment.
24.
For the avoidance of doubt, the Claimant recalled that since his last notification to the
Respondent regarding his alleged outstanding remuneration, he had received the
following payments, made on the following dates:
for October 2012: EUR 94,930.97 (29/11/2012) + EUR 264,930.97 (03/12/2012) + EUR
379,931.04 (05/12/2012) + EUR 48,346.38 (06/12/2012),
for November 2012: EUR 380,794.86 (07/01/2013) + EUR 304,629.34 (07/01/2013) +
EUR 95,970 (09/01/2013).
25.
Finally, regarding the payment of compensation for breach of contract, the Claimant
referred to art. 9.5. (2) of the contract, the terms of which are, according to him, without
ambiguity and which should be applied.
Club S’s reply to the player’s claim and counter-claim:
26.
In reply to the player’s claim, Club S first of all contested FIFA’s competence to deal with
the matter, referring to art. 22 of the Regulations on the Status and Transfer of Players
and stating that where a compulsory jurisdiction exists, FIFA’s deciding bodies are not
competent.
27.
In this regard, the Respondent maintained that the country C law stipulates a compulsory
jurisdiction regarding labour disputes to the Arbitration Commission for employmentrelated disputes, and quotes, inter alia, article 5 of the Law of the People’s Republic of
country C on Labor-Dispute Mediation and Arbitration, according to which, “Where a
labor dispute arises and the parties are not willing to have a consultation, or the
consultation fails, or the settlement agreement reached is not performed, they may apply
to a mediation institution for mediation. Where the parties are not willing to have
mediation, or the mediation fails, or the mediation agreement reached is not performed,
they may apply to a labor-dispute arbitration commission for arbitration. Where they are
dissatisfied with the arbitral award, they may initiate litigation to a People’s Court; unless
otherwise provided for in this Law”.
28.
Thus, the Respondent pointed out that under country C laws and regulations,
employment-related disputes fall within the compulsory jurisdiction of the “domestic
Labor-dispute Arbitration Commission” and that the Claimant had failed to follow such
mandatory path. In this regard, the Respondent referred to a CAS award in the matter CAS
2003/O/Club O v. Club F & FIFA.
Player D, country I / Club S, country C / Club G, country T
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29.
Club S also referred to art. 17.6. of the contract (cf. point I.6. above) in support of its claim
that country S laws and regulations allegedly apply to the present dispute as the
governing law.
30.
Finally, the Respondent submitted that there was no agreement between the parties to
submit the dispute to FIFA, referring to art. 15.2. of the contract (cf. point I.5. above), and
states that “The specificity of the wording clearly refers to issues concerning Laws of the
Game (football), discipline (FIFA Disciplinary Code) or the possibility of a transfer or loan of
the Player to a third Club (Clause 10 of the Contract)”. According to Club S, however, the
present dispute is employment-related and as such falls under the scope of art. 17.6. of the
contract as a matter “not covered by any specific jurisdictional provision”.
31.
As to the substance of the matter, the Respondent in turn provided its own account of the
events leading up to the termination of the contract by the Claimant.
32.
In this regard, Club S firstly alleged that the player, who was due to arrive in country C
prior to 1 July 2012, i.e. the date of entry into force of the contract, arrived only on 14 July
2012 for personal reasons. As a consequence of the said delay in his arrival to country C,
the player allegedly missed three matches of the country C Football League on 1 July 2012,
8 July 2012 and 14 July 2012. The player would have also missed two further matches on 20
October 2012 and 27 October 2012 without any justification. In this regard, Club S stated
that it had summoned the player regarding his lack of compliance with his contractual
obligations. However, Club S did not initiate disciplinary proceedings at this point,
“despite a first important breach of the Player’s contractual duties”.
33.
Regarding the player’s salary, Club S pointed out that the player consciously conceals that
the payment of the 1st instalment of the signing-on fee in the amount of EUR 3,000,000
was not paid by Club S but by the company XY, which signed an endorsement contract
with the player for image rights. According to Club S, the player knew that the other
payments in addition to his salary were not part of his direct remuneration payable by the
club, but were to be paid by a company for the use of his image rights. In this regard, Club
S provided FIFA with a copy of the “Endorsement Agreement”, signed between the player
and the company XY and dated 31 July 2012, which provides, inter alia, the following:
“(…) 2. Player D grants to Licensee [the company XY] the right and license to use Player D’s
name, voice, nickname, likeness and anything else that identifies Player D in Asia in
connection with the advertisement and promotion of XYZ during the term of this
Agreement.
3. Licensee agrees to pay Player D a sum of 3.1 million for the endorsement services within
three (3) days after the execution of this Agreement (…)”.
34.
Regarding the 2nd instalment of EUR 3,000,000, Club S alleged that it contracted with the
company X (hereinafter: company X) on behalf of the player in the framework of a deal
Player D, country I / Club S, country C / Club G, country T
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between the latter company and the player for an online game. The latter company
subsequently issued a cheque in the name of the player on 15 January 2013, which the
player refused to cash.
35.
Therefore, the Respondent is of the opinion that it did not breach its contractual
obligations towards the Claimant as the outstanding payments were to be made by the
companies XY and company X. and not by it.
36.
Club S concludes that the endorsement agreement signed between the player and the
company XY constitutes a transfer of the obligation to pay the lump sum of EUR 6,000,000
to the companies XY and company X.
37.
Furthermore, Club S points out that the monthly salaries of July, August and September
2012 were paid during the immediate next months and that a total of EUR 5,400,000 was
paid to the player during his 3 ½ months stay in country C, although he should have been
there for 4 months.
38.
In continuation, the Respondent stated that the Claimant came back late from national
team duties after the FIFA World Cup Qualifier of country I against country S held on 12
October 2012. Indeed, the Claimant came back only on 19 October 2012 whereas,
according to the FIFA Regulations, he should have been back no later than 2 days after the
match. The Claimant did not provide any justification for his late arrival, while his absence
caused damage to the Respondent as he missed the match of 19 October 2012 against Club
Y. Thus, on 26 October 2012, the Respondent sent an email to the Claimant’s agent by
means of which it complained about the player’s late arrival and stated that such
behaviour constitutes a “breach of the related terms of the Article 8 of the “Contract for
Foreign Player of country S Super League” and that “the Club hereby expressly reserves all
the rights in connection with such defaults”.
39.
Club S further explains that, thereafter, the player claimed that he had an injury on his left
ankle and refused to train together with the team as from 22 October 2012. However,
upon examination by the external doctor who usually treats the football players of the
club, the doctor could not find anything abnormal. Club S thus alleges that the player
wanted to rest longer and that he lacked professionalism in this respect. Equally, he
notified the club staff that he would not play the match against Club D on 27 October
2012.
40.
Club S also stresses that during the month of October 2012, Club U media reported that
the player was going to leave the club. Despite having sent three emails to the player’s
agent, the player did not respond to requests for clarification.
41.
On 25 November 2012, the Respondent authorised the Claimant to train with Club O as
from 26 November 2012 until 5 January 2013.
Player D, country I / Club S, country C / Club G, country T
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42.
On 28 November 2012, Club S’s representative notified the player’s agent by email of the
payment of the salary of October 2012, i.e. the amount of EUR 788,376.38. In this regard,
Club S admits that such payment was delayed, however by not more than 28 days; thus art.
9.5 (2) would not apply.
43.
On 30 December 2012, Club S’s representative once again sent an email to the player’s
agent to inform the latter that the salary of the month of November 2012 would be paid
on the same day. In this regard, Club S submitted that it paid the player the amount of
EUR 780,000, and explained that the difference of EUR 8,376.38, which is being claimed by
the player as outstanding remuneration, is due to the fact that Club S allegedly had to
bear some additional costs linked to the player’s stay in a hotel, reason for which such
amount was deducted from the player’s November 2012 salary. Club S is of the opinion
that the respective deduction from the November 2012 salary is “obviously minor” and
does not constitute a just cause for the termination of the contract.
44.
On 16 January 2013, the Claimant unilaterally terminated the contract without previously
discussing it with the Respondent. On 27 January 2013, however, the Respondent
requested the Claimant to withdraw its letter of 16 January 2013, this is, it explicitly
requested the return of the Claimant. Nonetheless, the latter signed an employment
contract with Club G on 29 January 2013.
45.
In summary, the Respondent deems that the Claimant did not have just cause to terminate
the contract and that his claim should be dismissed in full, for the following reasons:
the real motive of the termination of the contract by the Claimant was that he had
decided to return to Europe;
the Claimant arrived late at the start of the contract and breached his duties towards
the Respondent on various occasions;
he alleged having sustained an injury, whereas the medical examinations performed
on him showed no sign of injury;
the Respondent tried its best in order to solve the issue of the delay in payment of
the Claimant’s salaries, and the latter had in fact received EUR 6,200,000 in total at
the moment of the termination, and was offered a cheque for a further amount of
EUR 3,000,000;
The Claimant did not show any understanding for the club’s difficulties to pay “the
enormous sum of EUR 3,000,000 net, taking into account that this amount, together
with the first equal instalment, completes the lump sum agreed for the full duration
of the contract”;
the Respondent gave the Claimant explanations on a regular basis as to the delays in
payment and demonstrated its will to fulfil its obligations towards him;
between the beginning of November 2012 and the middle of January 2013, the
Respondent and the Claimant “reached new agreement with regard to the deadline
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for payment [of the remuneration], which shall be regarded as the change of original
clause contained in Article 9.5.2 of the Contract”;
A signing-on fee is to be considered as a lump sum due over the full duration of the
contract and which could as such be distributed pro rata temporis;
The Claimant entered into a contract with Club G immediately after having rescinded
his contract with the Respondent, clearly demonstrating that at the time of
terminating the contract, he was “not further interested in country C football and
had contacted with Club G in order to negotiate a new contract”.
46.
Alternatively and should the Dispute Resolution Chamber (DRC) find that the player had
just cause to terminate the contract, Club S is of the opinion that the compensation due to
the player should be reduced to the amount that Club G agreed to pay to the player,
“including signing-on-fee, fringe benefits, image rights, salaries and any other economic
compensation”, taking into account the time frame between 16 January 2013 and the end
of 2014. Furthermore, the player’s behaviour during the contractual relation should also
be taken into account as a further reason to mitigate the player’s damage.
47.
Finally, “in subsidiary form”, Club S lodged a counter-claim against the player and Club G,
and claimed compensation for breach of contract without just cause in the amount of EUR
12,000,000 on the basis of art. 9.7. of the contract (cf. point 4. above), for which Club G
shall be held jointly and severally liable.
48.
Club S also claimed the following:
Compensation for damages concerning image rights: “a calculation of losses on the
basis of lucrum cessans connected to the benefits deprived and supposed to be
derived from the exploitation of the image rights agreement” (amount unspecified),
Additional compensation due to the specificity of sport “consisting in the loss of the
high quality professional services of the player”, i.e. the amount of EUR 4,800,000
net, corresponding to six monthly salaries,
Sporting sanctions on the player (four-month restriction on playing official matches)
and Club G (ban on registering new players for two registration periods).
Player’s replica and reply to Club S’s counter-claim:
49.
First of all, the player rejected Club S’s claim that FIFA should not be competent to hear
the present dispute, referring to art. 68 of the FIFA Statutes in combination with art. 22 of
the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) as well
as the jurisprudence of the DRC and the Court of Arbitration for Sport (CAS). In particular,
the player asserted that the DRC is competent to hear the dispute on the basis of art. 22 a)
of the Regulations and that as such, the parties are prohibited to refer the dispute to
ordinary courts, in accordance with art. 68 of the FIFA Statutes.
Player D, country I / Club S, country C / Club G, country T
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50.
In continuation, the player pointed out that Club S did not contest FIFA’s competence
during the procedure before the Single Judge of the Players’ Status Committee (PSC)
regarding the provisional registration of the player with Club G.
51.
In addition, the player underlined that, while contesting FIFA’s competence, Club S had
lodged a counter-claim against the player and Club G.
52.
Finally, the Claimant referred to the terms of art. 15.2. of the contract, while stating that
art. 1 of the contract refers to the country C legislation “in vague terms”. Equally, the
Claimant disagreed with the Respondent’s interpretation of art. 15.2., as such clause clearly
refers to the “Settlement of Disputes”.
53.
In reply to Club S’s position as to the substance of the matter, the player held that art. 9.5.
(2) is clearly applicable in casu. In particular, the player, referring to the jurisprudence of
the DRC and CAS, pointed out that:
Club S systematically and persistently failed to honour its main obligation towards
the player, i.e. the payment of his salary, in a timely manner, this, ever since the start
of the contract;
Club S in its various correspondence has recognised that it owed the player the
second half of the sign-on fee, which is indubitably to be considered as part of the
player’s remuneration;
The “endorsement agreement” was concluded only with regard to the first half of
the sign-on fee and does not imply that the second half was to be paid by any third
party;
The cheque dated 15 January 2013 was clearly emitted by Club S, contrary to the
allegations of the latter;
By correspondence dated 29 November 2012, 4 December 2012 and 31 December
2012 the player granted, in good faith, additional time for Club S to comply with its
obligations, while constantly referring to art. 9.5. (2) of the contract, however to no
avail;
With the exception of one late return from his national teams duties and his late
arrival in country C on 14 July 2012 (for which the player justified himself, and Club S
accepted such justifications), the player always acted with professionalism; in any
event the absence of a player for a few days is not deemed a just cause to terminate
a player’s contract;
The player refuted Club S’s allegations that he faked an injury, providing an article
dated 19 October 2012 from the Agence France Presse (AFP) in this regard, in which
it is mentioned that the player sustained an injury during the match of his national
team against country S, and underlining that although he could not play during the
match of 20 October 2012 against Club Y, he had still participated in trainings for the
preparation of this match;
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At no point in time did Club S provide any evidence of the difficulties it was allegedly
facing regarding the payment of his remuneration, and has still not provided any
such evidence during the present procedure;
Club S violated the principle of pacta sunt servanda, whereas the player always tried
to resolve the issue of the delay in payment of his remuneration in an amicable way,
prior to rescinding the contract;
The player refuted Club S’s allegation that the signing-on fee was due pro rata
temporis, highlighting that such payment was, according to the contract, due to be
paid within the first season.
54.
In conclusion, the Claimant maintained his initial claim in full. Equally, he rejected the
Respondent’s counter-claim, underlining that the latter club had no basis to claim an
additional damage resulting from the loss of income for the exploitation of his image
rights, whereas the damage claimed in view of the specificity of sport was not supported
by any evidence. Finally, the Claimant mentioned that the Dispute Resolution Chamber
does not automatically impose sporting sanctions on a player.
Club G’s reply to Club S’s counter-claim:
55.
In reply to Club S’s counter-claim, Club G explained that prior to the commencement of the
winter registration period within the country T Football Federation, it had qualified to the
top 16 stage of the UEFA Champions’ League 2012-2013 and that in order to compete
during the upcoming intense football calendar, Club G searched for eligible players with
established careers in high level European Club competitions to strengthen its squad.
56.
It is in this context that it first signed a contract with the player W on 22 January 2013, and
it thereafter continued its search for a striker.
57.
On 23 January 2013, the agents of the player contacted the Sporting Director of Club G,
informing the latter that the player had unilaterally terminated his employment
relationship with Club S with just cause, and asked whether Club G was interested in
signing an employment contract with the player. Club G therefore invited the agents of
the player to Istanbul for negotiations. Those negotiations proving successful, two club
officials of Club G travelled to the Africa Cup of Nations to meet the player in person and
finalize the terms of his employment contract.
58.
At the same time, the lawyers of Club G requested the agent of the player to provide them
with the documents regarding the unilateral termination of the employment contract with
just cause with Club S. On 28 January 2013, the agent of the player sent an e-mail to Club
G containing the termination letter of the player dated 16 January 2013. After having
examined the relevant documents, Club G confirmed that the player had unilaterally
terminated his employment relationship with Club S. Therefore, on 28 January 2013, it
concluded an employment contract with the player.
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59.
The information regarding the registration of the player was then submitted to TMS on 28
January 2013 and on the same date the player’s ITC was requested by the country T
Football Federation to the country C Football Association.
60.
Club G sustained that throughout this period, it had never been informed about any
dispute between the player and Club S; it is only once the player’s ITC was requested that
Club G became aware of such dispute.
61.
Eventually, Club G submitted a request before the Single Judge of the Players’ Status
Committee for the provisional registration of the player, which was granted on 12
February 2013.
62.
Club G insisted on the fact that it did not contact the player, his agents or his lawyer
during the time the player was still contractually bound to Club S. On the contrary, the
players’ agents first contacted Club G after his employment contract with Club S had been
terminated.
63.
In view of the above, and with reference to art. 17 par. 4 of the Regulations, Club G
concluded that it did not induce the player to terminate his contract with Club S, and that
all allegations of the latter club against Club G are ill-founded and should be rejected.
64.
Finally, Club G requested Club S to bears all its legal expenses and any procedural costs
before the Dispute Resolution Chamber.
Club S’s replica as to its counter-claim:
65.
In its additional position and as to the statements of Club G, Club S found it hard to
believe that the latter country T club “suddenly found the [player’s] agents in their front
door asking if Player D can play with them”, even more so since it was publicly known that
the player was playing with a country C team since July 2012.
66.
Club S maintained that Club G should have been conscious of the legal situation of the
player, and that no club would have let a player of such level go free just with a letter of
unilateral termination of the employment contract. However Club G now tries to convince
the DRC that it did not know of any existing contractual dispute between the player and
Club S.
67.
According to Club S, it is more than obvious that the contacts between the player and Club
G started long before the termination of the contract with Club S and that the player was,
“if not convinced, helped to take the decision to leave Club S”.
Player D, country I / Club S, country C / Club G, country T
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68.
Thus the Respondent is convinced that the Claimant’s agent initiated negotiations with
Club G “long before the unilateral and unfair termination of the contract demonstrating
that the player’s version is an absolute fake and that Club G is more than implicated in the
termination of the contract between the player and [Club S]”.
69.
As to the player’s statements, Club S first of all insisted on the existence of compulsory
jurisdiction under the country C legislation, “thus, in application of the FIFA’s own
doctrine, the parties cannot decide to bring this dispute to FIFA”, referring mainly to its
previous arguments (cf. points 26. to 30. above).
70.
As to the substance, and in particular the application of art. 9.5 (2) of the contract, the
Respondent admitted once again that it had paid the salaries due to the Claimant “with
some slight delay, but it is just because of the huge amount that the [player] was earning”.
The Respondent stated that it is aware that the salary was agreed in the contract and that
the player should not have to worry about its treasury issues, but it insisted that it had to
pay every month an amount of EUR 800,000 to the player with a delay 28 days at the most,
and that even the EUR 3,000,000 (i.e. the first half of the signing-on fee) were paid to the
player despite the fact that the player started to perform his duties toward Club S with 15
days delay.
71.
According to the Respondent, “the constant jurisprudence of FIFA and CAS does not
accept that a mere 28 days (not even a month) [delay] in salaries’ payment was enough to
be considered as a breach of contract by the club”.
72.
Club S is conscious of the delays it had in paying the salaries of the player and always
apologised to the player, but it is of the opinion that a slight delay in paying the salaries is
not a reason to terminate a contract and claim for a compensation of more than EUR
24,000,000. In this regard, Club S referred to DRC and CAS jurisprudence (CAS 2006/A/1100,
1180 and 1062) which, in its opinion, considered that “to apply article 14 [of the
Regulations], a player has to have arrears in salaries of at least 3 months, what obviously
did not happened in the case in hand”.
73.
The Respondent further alleged that, to compensate in some way the delays in payment of
the Claimant’s salary, it decided to overlook the 2 days delay that the player had in
October 2012 when coming back from national team duties as well as his “mysterious
injury” which did not allow him to play against Club D on 27 October 2012, together with
the fact that the Claimant was authorised to train with Club O until 5 January 2013.
74.
As to the payment of the signing-on fee, Club S deemed that this is the real reason which
the player uses to justify his unilateral termination of the contract since the sole nonpayment of his salary for December 2012 is obviously “a poor reason to terminate a
contract”.
Player D, country I / Club S, country C / Club G, country T
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75.
Furthermore, Club S stated that the player did not at any point in time contact the
company XY, which was responsible for the payment of the 1st half of the signing-on fee,
regarding the payment of the 2nd half.
76.
Equally, Club S alleged that the signing-on fee is to be considered as remuneration, which
is different from “salary” or “wage”. According to Club S, “it is undisputed that the two
instalments of 3 million euro were remuneration for the use of the Image rights of [the
player] during the whole employment contract, and the most important evidence is the
fact that the 2 instalments were paid by private companies whose corporate purpose is far
away from the football practice, clothes manufacturing and advertising”.
77.
The Respondent concludes that no compensation is due to the Claimant, who rushed to
terminate the contract and to sign a contract with another club without having a just
cause to do so, and maintained its counter-claim in full, adding a request for 5% interest
on the amount of compensation to be awarded by the DRC, from the date on which the
Claimant unilaterally terminated the contract.
Player’s and Club G’s final positions as to Club S’s counter-claim:
78.
Finally, the player and Club G provided their respective final position in the present
matter, mainly reiterating their previous statements.
79.
Furthermore, Club G strongly refuted Club S’s statement that “no one can believe that one
day [Club G] suddenly found [the player’s] agents in their front door, asking if Player D can
play with them”, which is not supported by any evidence. In this regard, Club G added that
it had already a long-standing relationship with Mr F, the player’s agent, since Mr T,
Sporting Director of Club G, had performed many transfer negotiations in the past with
the said players’ agent.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it
took note that the present matter was submitted to FIFA on 27 January 2013.
Consequently, the Rules Governing the procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2012; hereinafter: the Procedural Rules) are
applicable to the matter at hand (cf. art. 21 par. 1 and 2 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;
hereinafter: the Regulations) the Dispute Resolution Chamber would, in principle, be
Player D, country I / Club S, country C / Club G, country T
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competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an country I player, a country C club and
a country T club.
3.
However, the Chamber acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the basis of art. 17.6. of the contract as well as art. 5 of the Law
of the People’s Republic of country C on Labor-Dispute Mediation and Arbitration, stating
that under country C laws and regulations, employment-related disputes fall within the
compulsory jurisdiction of the “domestic Labor-dispute Arbitration Commission”.
4.
Equally, the Chamber noted that the Claimant rejected such position and insisted that FIFA
has jurisdiction to deal with the present matter on the basis of art. 22 a) of the Regulations
on the Status and Transfer of Players as well as art. 68 of the FIFA Statutes.
5.
In view of the above, the Chamber first of all referred to the contents of the employment
contract concluded between the Claimant and the Respondent, and in particular to art.
17.6 of the contract, according to which “Matters uncovered in this contract shall be
managed in accordance with the laws, regulations, rules of PRC and relevant provisions of
FIFA, which shall prevail over any other regulations and rules, and country C Football
Association provisions”. The Chamber concluded that such clause is a not, as alleged by the
Respondent, a clause of choice of forum, but rather a choice of law. Furthermore, the said
clause, while referring to the laws, regulations and rules of the People’s Republic of
country C, also specifically refers to “the relevant provisions of FIFA”.
6.
Consequently, the DRC affirmed that art. 17.6 of the contract does not provide for the
exclusive jurisdiction of the domestic Labor-Dispute Arbitration Commission in case of
dispute between the parties to the contract.
7.
In continuation, and while analysing the documentation submitted by the Respondent in
support of its claim that the country C law provides for a compulsory jurisdiction of the
“domestic Labor-dispute Arbitration Commission” for employment-related disputes, the
DRC lent particular emphasis to art. 5 of the Law of the People’s Republic of country C on
Labor-Dispute Mediation and Arbitration, which provides that “Where a labor dispute
arises and the parties are not willing to have a consultation, or the consultation fails, or
the settlement agreement reached is not performed, they may apply to a mediation
institution for mediation. Where the parties are not willing to have mediation, or the
mediation fails, or the mediation agreement reached is not performed, they may apply to
a labor-dispute arbitration commission for arbitration. Where they are dissatisfied with the
arbitral award, they may initiate litigation to a People’s Court; unless otherwise provided
for in this Law”.
8.
The Chamber was of the view that the aforementioned provision only allows for the
possibility to refer any employment-related disputes to the Labor-Dispute Arbitration
Player D, country I / Club S, country C / Club G, country T
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Commission; however, there does not appear to be any obligation for the parties to do so,
as is evidenced by the use of the term “may”. In other words, such provision does not
provide for a mandatory jurisdiction of the Labor-Dispute Arbitration Commission.
9.
Furthermore and upon analysis of the rest of the documentation provided by the Club S,
the Chamber could not find any further evidence in support of the allegation that the
Chinese law provides for the mandatory jurisdiction of a domestic arbitration commission.
Therefore, the Chamber decided to reject Club S’s argument in this respect. However, the
DRC did note that arbitration, as such, is explicitly allowed by Chinese law for the
settlement of employment-related disputes.
10.
Finally, the Chamber underlined that according to art. 15.2 of the contract, “Any dispute in
respect of matters of football, discipline, or transfers shall be submitted by either Party to
the arbitration committee of FIFA, and shall be resolved according to FIFA regulations”. In
this respect, the Chamber recalled Club S’s argument that this clause cannot apply to the
matter at hand, since it does not concern matters of football, discipline or transfers.
According to Club S, “the specificity of the wording clearly refers to issues concerning Laws
of the Game (football), discipline (FIFA Disciplinary Code) or the possibility of a transfer or
loan of the Player to a third Club (Clause 10 of the Contract)”.
11.
As to Club S’s argumentation in this context, the DRC stated that it cannot uphold Club S’s
narrow interpretation of art. 15.2 of the contract, since there is no evidence that the
parties had intended to restrict the application of this contractual clause to these
particular topics. Equally, the Chamber highlighted that the clause explicitly mentions that
FIFA is competent for the settlement of disputes. Therefore the Chamber concluded that in
principle the parties had mutually agreed on the jurisdiction FIFA’s deciding bodies to
settle any dispute between them.
12.
In view of all aforementioned considerations, the Chamber established that the
Respondent’s objection to the competence of FIFA to deal with the present matter has to
be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations,
to consider the present matter as to the substance.
13.
Furthermore and for the sake of good order, the DRC clarified that its competence does
not originate from art. 22 a) of the mentioned Regulations in this particular matter, as the
dispute is not, strictly speaking, in connection with an ITC request, but rather in connection
with the early termination of the contract by the player, and whether or not such
termination occurred with or without just cause.
14.
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 (edition 2012)
Player D, country I / Club S, country C / Club G, country T
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and considering that the claim in front of FIFA was lodged on 27 January 2013, the 2012
edition of said Regulations is applicable to the present matter as to the substance.
15.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation submitted by the parties. However, the Chamber emphasised that in the
following considerations it will refer only to the facts, arguments and documentary
evidence which it considers pertinent for the assessment of the matter at hand.
16.
The Chamber first of all duly noted that on 6 January 2012, the player and Club S entered
into an employment contract as well as a supplemental agreement, both valid as from 1
July 2012 until 31 December 2014.
17.
Furthermore, it is uncontested that the player notified Club S of the termination of the
contract in writing on 16 January 2013, referring to various default notice letters sent
previously to Club S as well as to art. 9.5 (2) of the contract, in view of the fact that Club S
would have been in default of payment of his remuneration.
18.
The Claimant deems that he terminated the contract with just cause due to the
Respondent’s repeated failure to pay him his remuneration in a timely manner as well as
to pay him part of his salary of November 2012, the second instalment of the signing-on
fee in the amount of EUR 3,000,000 as well as his salary of December 2012, and claims
outstanding remuneration as well as compensation for breach of contract against Club S in
the total amount of EUR 23,739,359.25 plus interest.
19.
The Respondent, in summary, does not contest having been in default of payment of part
of the Claimant’s salary, nor that it paid the salaries with delay, but holds that it had, by
the date of termination of the contract by the player, almost entirely remedied such
default, while underlining that the delays in payment allegedly never exceeded the period
of 28 days in the sense of art. 9.5 (2) of the contract. In general, the Respondent asserts
that the breach was not substantial enough to conclude that the Claimant had just cause
to terminate the contract.
20.
Furthermore, the Respondent is of the opinion that it was not liable to pay the Claimant
the claimed outstanding second instalment of the signing-on fee in the amount of EUR
3,000,000. In this regard, Club S held that the first half of the signing-on fee had been paid
by the company XY in accordance with an “endorsement agreement” concluded between
the latter company and the player regarding the use of the player’s image rights. Equally,
the company X allegedly took over the responsibility to pay the 2nd half of the signing-on
fee. Club S contends that the player was well aware that any amounts other than his salary
were to be paid by private companies for the use of his image rights, and that the
endorsement agreement signed between the player and the company YX constitutes a
Player D, country I / Club S, country C / Club G, country T
18/28
transfer of the obligation to pay the lump sum of EUR 6,000,000 to the companies YX and
company X.
21.
If the DRC would, however, find that Club S had to pay the signing-on fee, Club S affirms
that the DRC shall take into account the fact that a signing-on fee is to be considered as a
lump sum due over the full duration of the contract and which could as such be distributed
pro rata temporis.
22.
Finally, Club S put forward that its contractual breach of its financial obligations must be
seen in the light of the player’s own breach of his contractual duties. In this context, Club S
alleges that the player (i) arrived in country C with 14 days delay at the start of the
employment contract; (ii) returned late from national team duties on two occasions; (iii)
faked an injury, and (iv) was in general not interested in staying with Club S, and instead
wanted to sign with a club in Europe.
23.
In light of Club S’s aforementioned statements, the latter lodged a counter-claim against
the player, asserting that the player did not have a just cause to terminate the contract,
and claimed compensation for breach of contract in the total amounts of EUR 12,000,000
on the basis of art. 9.7. of the contract, as well as an unspecified amount of compensation
for damages concerning image rights and the amount of
EUR 4,800,000 net,
corresponding to six monthly salaries due to the specificity of sport, for which Club G
should be held jointly and severally liable. Finally, Club S requested the DRC to impose
sporting sanctions on both the player and Club G.
24.
In continuation, the DRC also took note that the Claimant denied all of the Respondent’s
allegations in respect of the latter’s counter-claim. The Chamber also acknowledged Club
G’s position, and in particular that according to the latter club, it had not entered in
contact with the player prior to him terminating the contract with Club S and that it had
asked the player to provide proof of his termination of the relevant contract before
entering into a contract with him. Since the player provided evidence that he had
terminated the contract with Club S in writing on 16 January 2013, Club G was of the
opinion that it was entitled to conclude a contract with the player on 28 January 2013.
25.
Having recalled the relevant facts and respective positions of the parties to the present
dispute, the DRC highlighted that the central issue in the matter at stake would be, thus,
to determine as to whether the player had just cause to terminate the contract on 16
January 2013.
26.
In this respect, the Chamber duly noted that the player based his claim on the fact that,
allegedly, Club S had systematically failed to honour its financial obligations towards him
in a timely manner, starting as from July 2012 up until the date of termination of the
contract, despite several default notice letters having been sent by the player to Club S
Player D, country I / Club S, country C / Club G, country T
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respectively on 12 October 2012, 1 November 2012, 29 November 2012, 4, 27 and 31
December 2012.
27.
Furthermore, the Chamber determined that according to the player, on the date of
termination of the contract, Club S had failed to pay the following amounts:
EUR 3,000,000 representing the second instalment of the signing-on fee,
EUR 6,982.16 as part of the salary of November 2012,
EUR 788,376.38 for the salary of December 2012,
EUR 406,903.94 for the salary of 16 days of January 2013.
28.
The Chamber equally noted that Club S had not contested having been in default of
payment of the player’s salary. However, in its defence, Club S argues that (i) the player
failed to show a certain degree of understanding of the club’s difficulties of having to pay
such high amounts; (ii) the player was himself in breach of contract, and (iii) it was not
responsible for the payment of the 2nd half of the signing-on fee.
29.
As to the first of Club S’s arguments, the DRC held, first of all, that Club S did not prove
whatsoever that it was actually experiencing some difficulties in paying the player’s salary.
Assuming, though, that this would have been the case, the Chamber was rather of the
opinion that the player had in fact shown quite some understanding while facing delays in
receiving his salary. The player has sent a total of 6 default notice letters reminding Club S
of its arrears, and has agreed to grant the latter club, on several occasions, an extension of
the deadline to proceed to the payment of the outstanding remuneration.
30.
Furthermore, the Chamber was eager to emphasise that the fact that Club S thought that
the player’s salary was high is irrelevant, as his salary was mutually agreed upon when
concluding the contract. It is assumed therefore that a club committing itself to pay a
certain amount of salary, whichever amount it would be, will have the financial means to
pay the contractually agreed amount. Generally speaking, the principle of pacta sunt
servanda, which means in essence that agreements must be respected by both parties in
good faith, applies to employment contracts concluded between professional players and
clubs, unless there is any valid reason for one party not to execute their obligations
towards the counterparty. The fact that the amount of salary would be high is, in the
Chamber’s view, by no means a valid reason not to proceed to the payment of the
contractually agreed amount of salary on the designated date.
31.
On account of the foregoing, the Chamber resolved that it must reject the first of Club S’s
arguments as to the non-payment of the player’s salary.
32.
As to Club S’s second argument, the Chamber remarked that Club S itself had admitted
that the alleged violations by the player of the contract, i.e. his late arrival in country C as
well as his late return from international duties, were deliberately never followed up by
Club S at the time these alleged events occurred (cf. point I.32. above). Therefore, the
Player D, country I / Club S, country C / Club G, country T
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Chamber was of the opinion that Club S cannot, after the termination of the contract by
the player, use this as an excuse for not having paid part of his remuneration while the
player was still under contract with Club S. Equally, the Chamber held that it could not
take into account Club S’s allegations that the player faked an injury, as these allegations
were not supported by enough documentary evidence.
33.
Lastly, as to the Respondent’s third argument, which the Chamber found to be the most
pertinent in the assessment of the present matter, the latter deciding body reasoned that,
although the Claimant expressly acknowledged that the first instalment of the signing-on
fee was indeed paid by the company XY, there is, however, no evidence that a third party,
i.e. a company or any other entity, was to pay the second instalment. Indeed, the
“endorsement agreement” only refers to the first instalment, if at all, which was
apparently paid to the Claimant by the company XY, while there is no indication that a
company should have paid the second instalment. Furthermore, the DRC underlined that in
reaction to the Claimant’s default notices, the Respondent never alleged that it was a
company’s obligation to pay the second instalment.
34.
In light of the above, the Chamber affirmed that the parties to the contract had not
agreed that the obligation to pay the second instalment of the signing-on fee in the
amount of EUR 3,000,000 would be transferred to a third party. In view of the fact that the
contract explicitly mentions that this obligation falls on Club S (cf. art. 5.2 of the contract),
the DRC had no other alternative than to conclude that Club S was responsible for the
payment of the second instalment of the signing-on fee and that it had failed to proceed
to such payment.
35.
At this stage, the Chamber specified that, contrary to Club S’s assertion, a signing-on fee is
not an advance payment, and therefore its payment is not to be spread over the entire
duration of the contract. Furthermore, the contract established fixed due dates for the
payment of the two instalments, this is, the first one was due within 28 days of the date of
effectiveness of the contract, and the second one 4 months after the date of effectiveness
of the contract.
36.
The aforementioned considerations led the Chamber to establish that it did not find any
valid reason for which the Respondent had failed to pay the Claimant the claimed
outstanding remuneration.
37.
This being said, it still had to analyse if the Respondent’s breach of its financial obligations
towards the Claimant entitled the latter to prematurely terminate the contract.
38.
In this regard, the Chamber recalled that it remains uncontested that, from the very
beginning of the employment relationship up until the date of termination of the
contract, Club S had repeatedly paid the player’s salary with delay. Equally, it is established
that, on the date of termination of the contract by the player, i.e. 16 January 2013, Club S
Player D, country I / Club S, country C / Club G, country T
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had not proceeded to the payment of part of the salary of November 2012, the salary of
December 2012, and the second instalment of the signing-on fee in the amount of EUR
3,000,000.
39.
In continuation, the Chamber referred to art. 9.5 (2) of the contract, on which the player
based his entitlement to terminate the contract. According to such clause, the player
would have been entitled to terminate the contract if Club S failed to make any payment
under the contract and such failure would not be remedied within 28 days.
40.
In this context, the DRC wished to address Club S’s argument that between the beginning
of November 2012 and the middle of January 2013, Club S and the player had “reached
new agreement with regard to the deadline for payment [of the remuneration], which
shall be regarded as the change of original clause contained in Article 9.5.2 of the
Contract”. The Chamber could not follow Club S’s argument, since a default notice letter
is, in principle, rather to be seen as a gesture of good will from a player, by means of
which a player gives another chance to a club to remedy its default within a certain
deadline, and in order to reserve his right to claim such amount in future, should the
amount remain unpaid.
41.
In view of the above, the Chamber established that on 16 January 2013, the amounts due
to the player under the contract which were outstanding for more than 28 days were a
part of the salary of November 2012 as well as the second instalment of the signing-on fee.
Thus, in principle, art. 9.5 (2) of the contract would apply in casu.
42.
Notwithstanding the above, the Chamber reiterated that Club S had repeatedly breached
its financial obligations by paying each monthly salary, from July to November 2012, with
delay. The Chamber underlined that if the payment of the salary is repeatedly not made
on the date designated in the employment contract, this may obviously cause the player’s
confidence in the proper fulfilment of future obligations by the club to be lost.
43.
Furthermore, the Chamber has also established that Club S failed to pay the second
instalment of the signing-on fee in the amount of EUR 3,000,000, which was due 4 months
after the date of effectiveness of the contract. In this respect, the question as to which was
the exact due date of this amount (whether it should be regarded as 1 November 2012 or
14 November 2012, i.e. 4 months after the player arrived in country C) can be left open, as
it is evident that such amount was outstanding, for more than two months, by the time
the player terminated the contract on 16 January 2013. Such amount is, in the Chamber’s
view, to be seen as an important part of the player’s entire remuneration. In other words,
Club S’s failure to pay the relevant amount constitutes in itself a substantial breach of the
contract.
44.
Thus, the DRC could give credit to the fact that, when the Respondent also failed to pay
the salary of December 2012 on the contractually agreed date of 30 December 2012, the
Player D, country I / Club S, country C / Club G, country T
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Claimant could no longer expect that the Respondent would honour its contractual
obligations towards him in future. Equally, the Chamber found that the Respondent’s
failure to pay part of the salary of November 2012, of December 2012, as well as the
second instalment of the signing-on fee, together with its previous failure to pay the
Claimant’s salary in a timely manner on several occasions, constituted a repeated and
serious breach on the Respondent’s part, which had cumulated over a long period of time,
and which thus meant that it could no longer be expected from the Claimant to maintain
the employment relationship.
45.
In light of the foregoing considerations, the DRC came to the unanimous conclusion that
the Claimant had a just cause to terminate the contract with the Respondent on 16
January 2013, and that, consequently, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
46.
Furthermore and for the sake of completeness, the Chamber wished to emphasise that
Club S is incorrect in stating that “to apply article 14 [of the Regulations], a player has to
have arrears in salaries of at least 3 months”. Indeed, the deciding body shall, when
establishing whether just cause exists, assess the matter on a case-by-case basis and taking
into account the specific circumstances in each particular case.
47.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract with just cause by the
player.
48.
First of all, the members of the Chamber concurred that Club S must fulfil its obligations as
per employment contract in accordance with the general legal principle of pacta sunt
servanda. Consequently, the Chamber decided that Club S must pay to the player the
remuneration that was outstanding at the time of the termination, i.e. the second
instalment of the signing-on fee in the amount of EUR 3,000,000 as well as the salary of
the month of December 2012 in the amount of EUR 788,376.38 as claimed.
49.
With respect to a part of the salary of November 2012, the DRC recalled Club S’s allegation
that it had deducted an amount of EUR 6,982.16 from this salary, due to the fact that,
allegedly, it had to bear some additional costs linked to the player’s stay in a hotel. In this
regard, the Chamber duly noted that Club S had submitted a hotel invoice regarding a
hotel stay between “July 14th“ and “July 21st”, which as “full paid on July 13th and July
16th“, for the amount of currency of country C 399,150, which represented approximately
EUR 50,000 in July 2012. Having examined such documentation, however, the DRC found it
to be rather vague and not corresponding to the amount of the deduction which Club S
made to the player’s salary for November 2012. Therefore, the DRC considered that this
documentation cannot be taken into account, and consequently that Club S must also pay
the amount of EUR 6,982.16 to the player as remainder of his salary for November 2012.
Player D, country I / Club S, country C / Club G, country T
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50.
Finally and in accordance with the Claimant’s respective claim, the DRC decided to grant
the Claimant 5% interest per annum on the aforementioned amounts as follows:
as from 30 November 2012 on the amount of EUR 6,982.16;
as from 2 November 2012 on the amount of EUR 3,000,000;
as from 31 December 2012 on the amount of EUR 788,376.38.
51.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the player is entitled to receive compensation for breach of contract from
Club S, in addition to any outstanding remuneration on the basis of the contract.
52.
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 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.
53.
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 respect, the Chamber acknowledged that the
contract contained the following provisions:
Art. 9.5. (2):
“Party B [the player] may terminate this Contract by written notice to Party A [Club S] and
all amounts due according to this Contract until its expiration shall be immediately payable
to Party B, under one of the following circumstances:
(…)
(2) Party A fails to make payments due under this Agreement, if said failure is not
remedied within 28 days of notification thereof
(…)”.
Art. 9.7. of the contract:
“If the Contract is unilaterally terminated by Party B [the player] without any proper
reason under this Contract, Party B shall compensate Party A [Club S] with Euro 12
million”.
54.
In continuation, the Chamber recalled that the Claimant bases his claim for compensation
for breach of contract on the above-mentioned art. 9.5 (2) of the contract.
Player D, country I / Club S, country C / Club G, country T
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55.
On account of the aforementioned, the DRC reasoned that, in accordance with art. 9.5 (2)
of the contract, if the player terminated the contract with just cause due to unpaid
remuneration, he would receive compensation corresponding to the value of his salaries as
from the date of termination of the contract until the date of its normal expiry. Whereas,
in accordance with art. 9.7 of the contract, if the player would terminate the contract
without just cause, the club would receive compensation in the amount of EUR 12,000,000.
In this respect, the Chamber was eager to emphasise that the latter clauses are
disproportionate. This is, they would in principle allow for the club, on the one hand, to
receive the fixed amount of EUR 12,000,000 in any case where the player would be found
to have terminated the contract without just cause and irrespective of when the
termination would occur. On the other hand, in case the player would terminate the
contract with just cause, he would be entitled to receive an amount which would depend
on the moment when he would terminate the contract.
56.
With the aforementioned in mind, the DRC decided that it cannot apply the compensation
clauses under the contract in view of the fact that they establish disproportionate rights
for the parties to the contract. Consequently, the deciding body concluded that art. 9.5 (2)
of the contract must be disregarded in the assessment of the amount of compensation to
be awarded to the player.
57.
Therefore, the members of the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant 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 emphasised beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a case-by-case
basis taking into account all specific circumstances of the respective matter.
58.
In order to estimate the amount of compensation due to the player in the present case,
the members of the Chamber first turned their attention to the remuneration and other
benefits due to the Claimant under the existing contract and/or the new contract, which
criterion was considered by the Chamber to be essential. The members of the Chamber
deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations
allows the Chamber to take into account both the existing contract and the new contract,
if any, in the calculation of the amount of compensation.
59.
The Chamber pointed out that the contract signed by the player and Club S was to run for
another 24 months, i.e. until 31 December 2014, after the termination of the contract
occurred. Furthermore, the Chamber understood that despite the terms of the contract,
the player was receiving a monthly net salary of EUR 788,376.38 instead of EUR 800,000.
Therefore, the residual value of the contract amounts to EUR 18,921,033. Consequently,
Player D, country I / Club S, country C / Club G, country T
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the Chamber concluded that the amount of EUR 18,921,033 serves as the basis for the final
determination of the amount of compensation for breach of contract.
60.
The Chamber then took due note of the player’s employment situation after the
termination of the contract at the basis of the matter at stake. Bearing in mind art. 17 par.
1 of the Regulations and in accordance with the constant practice of the Dispute
Resolution Chamber as well as the general obligation of the player to mitigate his
damages, such remuneration under a new employment contract(s) shall be taken into
account in the calculation of the amount of compensation for breach of contract. In this
regard, the Chamber recalled that on 28 January 2013, the player signed a new contract
with Club G, valid as from 28 January 2013 until 30 June 2014. According to the said
contract, the player was entitled to the following amounts:
a.
b.
c.
d.
e.
f.
g.
2012-2013 season: EUR 2,000,000,
2013-2014 season: EUR 4,000,000,
Signing-on fee: EUR 4,000,000,
Guaranteed salary of EUR 15,000 per match in case he is fielded in the squad,
EUR 125,000 if the team wins the country T Super League in the season 2012-2013,
EUR 125,000 if the team wins the country T Super League in the season 2013-2014.
EUR 250,000 if the team qualifies for the final 16 in the UEFA Champions’ League
in the season 2013-2014,
h. EUR 250,000 if the team qualifies for the final 8 in the UEFA Champions’ League in
the season 2012-2013,
i. EUR 500,000 if the team qualifies for the final 8 in the UEFA Champions’ League in
the season 2013-2014.
61.
In accordance with its well-established jurisprudence, the Chamber reasoned that it can
only take into account the fixed remuneration paid to the Claimant, this is, the signing-on
fee in the amount of EUR 4,000,000, as well as his annual remuneration of EUR 2,000,000
for the season 2012-2013 season and of EUR 4,000,000 for the season 2013-2014.
62.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the player’s general obligation to mitigate his
damage, the Chamber decided to partially accept the Claimant’s claim for compensation
for breach of contract and that the Respondent must pay the amount of EUR 8,921,033 as
compensation for breach of contract in the case at hand.
63.
In addition, taking into account the player’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Chamber decided that Club S must pay to
the player interest of 5% p.a. on the amount of compensation as of the date of the
present decision, i.e. 31 October 2013 until the date of effective payment.
Player D, country I / Club S, country C / Club G, country T
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64.
Furthermore, the Chamber clarified that, given the conclusion that the Claimant had
terminated his contract with just cause, the Respondent’s counter-claim for compensation
for breach of contract against the Claimant and Club G, respectively inducement to breach
against Club G, must be rejected.
65.
Finally, the Chamber rejected any claim for legal expenses and procedural compensation in
accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective
jurisprudence.
66.
The Dispute Resolution Chamber concluded its deliberations by 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 / Counter-Respondent 1, Player D, is admissible.
2.
The claim of the Claimant / Counter-Respondent 1, Player D, is partially accepted.
3.
The Respondent / Counter-Claimant, Club S, has to pay to the Claimant / CounterRespondent 1, Player D, within 30 days as from the date of notification of this decision,
outstanding
remuneration
in
the
amount
of
EUR 3,795,358.54 plus 5% interest until the date of effective payment as follows:
5% interest per annum as from 30 November 2012 on the amount of EUR 6,982.16;
5% interest per annum as from 2 November 2012 on the amount of EUR 3,000,000;
5% interest per annum as from 31 December 2012 on the amount
EUR 788,376.38.
of
4.
The Respondent / Counter-Claimant, Club S, has to pay to the Claimant / CounterRespondent 1, Player D, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 8,921,033 as well as 5% interest
per annum on the said amount as from 31 October 2013.
5.
Any further claims lodged by the Claimant / Counter-Respondent 1, Player D, are rejected.
6.
If the aforementioned sums plus interest are not paid within the above-mentioned time
limits, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
7.
The Claimant / Counter-Respondent 1, Player D, is directed to inform the Respondent /
Counter-Claimant, Club S, immediately and directly of the account number to which the
Player D, country I / Club S, country C / Club G, country T
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remittances are to be made and to notify the Dispute Resolution Chamber of every
payment received.
8.
The counter-claim of the Respondent / Counter-Claimant, Club S, is 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 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
Player D, country I / Club S, country C / Club G, country T
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