Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 October 2014,
in the following composition:
Geoff Thompson (England), Chairman
Damir Vrbanovic (Croatia), member
Todd Durbin (USA), member
Joaquim Evangelista (Portugal), member
John Bramhall (England), member
on the claim presented by the club,
Club Z, from country S
as Claimant / Counter-Respondent
against the player,
Player J, from country P
as Respondent I / Counter-Claimant
and the club,
Club U, from country P
as Respondent II
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 21 August 2011, the player J from country P (hereinafter: the Respondent I
/ Counter-Claimant), born on 9 June 1993, and the club from country S, Club Z
(hereinafter: the Claimant / Counter-Respondent), signed an employment
contract (hereinafter: the contract) valid as from 23 August 2011 until 31 May
2015.
2.
According to art. 2 par. 1 of the contract, the Claimant / Counter-Respondent
undertakes to pay the Respondent I / Counter-Claimant a monthly salary in the
amount of EUR 3,400, as from 22 August 2011.
3.
Moreover, art. 5 par. 2 of the contract indicates that in case the Respondent I /
Counter-Claimant fails to meet the obligations arising from the contract as
well as in case of weak and reckless performances, the Claimant / CounterRespondent has the right to:
i. “decrease the basic monthly salary after the written notice from the
Club,
ii. decrease the basic monthly salary up to 50% for the breach of
conditions stated in the article III of the contract (…)”.
4.
Furthermore, art. 6 par. 11 indicates that “regardless the previous termination
clauses, at any time during the length of his contract, regardless protected or
non-protected period and/or in or out of the transfers windows, the Player
and/or a club interested in his professional services as football player can
terminate the present employment contract and fully recover his federative
and registration rights and his right to sign a new employment contract with a
new club, by paying the amount of 2.000.000,- EUR two million EUR) to the
account of the Club stated in the Contract (…)”.
5. On the same date, the Respondent I / Counter-Claimant and the Claimant /
Counter-Respondent signed a financial agreement, containing several
conditional bonuses which the Respondent I / Counter-Claimant was to receive
depending on participation in matches and goals scored.
6.
On 26 September 2012, the Claimant / Counter-Respondent was requested by
the Football Federation from country P to release the Respondent I / CounterClaimant as of 7 October 2012 until 16 October 2012 in order to prepare the
upcoming U-20 Championship. Such request was accepted by the Claimant /
Counter-Respondent. The Respondent I / Counter-Claimant then returned to
country S on 16 November 2012.
7.
In December 2012, the Respondent I / Counter-Claimant was called-up to
participate in the U-20 Championship held in country A. On this occasion, the
Claimant / Counter-Respondent agreed to release the Respondent I / Counter-
Club Z, from country S / Player J, from country P / Club U, from country P
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Claimant from 4 December 2012 until 7 February 2013. After the end of the
competition, the Respondent I / Counter-Claimant never returned the Claimant
/ Counter-Respondent.
8.
On 26 February 2013, the Respondent I / Counter-Claimant put the Claimant /
Counter-Respondent in default, giving the latter two days to comply with its
obligations. In particular, the Respondent I / Counter-Claimant reproached the
Claimant / Counter-Respondent for not providing him medical support in spite
of having been informed of his mental disorder in January 2012 and for
reducing his wage excessively.
9.
On 28 February 2013, the Claimant / Counter-Respondent replied to the
Respondent I / Counter-Claimant’s default notice, rejecting all his assertions.
Regarding the decision to reduce the Respondent I / Counter-Claimant’s wages,
the Claimant / Counter-Respondent explained that it was taken as a
disciplinary sanction in accordance with the contract due to the Respondent I /
Counter-Claimant’s unexcused absence between 17 October 2012 and 16
November 2012. As to the alleged lack of medical support, the Claimant /
Counter-Respondent pointed out that it was informed of the Respondent I /
Counter-Claimant’s medical condition on 28 November 2012 when it was
provided with a medical report issued by a Dr G. In this respect, the Claimant /
Counter-Respondent highlighted that it did not propose a specific medical
treatment because in a letter dated 20 November 2012, the Respondent I /
Counter-Claimant stated that “now in country S I will continue this treatment
with Psycologie Doctor G”. In addition, the Claimant / Counter-Respondent
outlined that the Respondent I / Counter-Claimant’s failure to return on time
on two occasions could constitute a breach of contract. Finally, the Claimant /
Counter-Respondent invited the Respondent I / Counter-Claimant to a meeting
in order to discuss the issue.
10. On 4 March 2013, the Respondent I / Counter-Claimant, with reference to the
arguments put forward in the letter dated 26 February 2012, notified the
termination of the contract to the Claimant / Counter-Respondent.
11. On 12 March 2013, the Claimant / Counter-Respondent lodged a claim in front
of FIFA against the Respondent I / Counter-Claimant for breach of contract
without just cause. In this respect, and on the basis of art. 6 par. 11 of the
contract, the Claimant / Counter-Respondent requests to be awarded with the
total amount of EUR 2,000,000 plus 5% interest p.a. as from 4 March 2013,
date on which the Respondent I / Counter-Claimant unilaterally terminated the
contract. The Claimant / Counter-Respondent also requested FIFA to condemn
the Respondent I / Counter-Claimant to bear the legal costs.
12. According to the Claimant / Counter-Respondent, from the very outset of the
contractual relationship, the Respondent I / Counter-Claimant never settled
Club Z, from country S / Player J, from country P / Club U, from country P
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down, causing unrest with his head coaches, team staff and colleagues.
Therefore, the Claimant / Counter-Respondent explains that an emergency
meeting took place between the parties on 24 February 2012. In this respect,
the Claimant / Counter-Respondent stresses that the Respondent I / CounterClaimant had not complained of depression during the meeting and that it
expressed its full support to the Respondent I / Counter-Claimant in order to
help him overcome the problems related to his mother’s death. The Claimant /
Counter-Respondent further maintains that following the meeting, the
Respondent I / Counter-Claimant´s behaviour improved.
13. In continuation, the Claimant / Counter-Respondent refers to the Respondent I
/ Counter-Claimant’s first international call-up and alleges that the Respondent
I / Counter-Claimant was absent without its consent as from 17 October 2012
until 16 November 2012 and therefore missed 5 league games and 2 cup
games. In this respect, the Claimant / Counter-Respondent states that it was
informed by the Football Federation from country P that the Respondent I /
Counter-Claimant had returned to country P on his own and that he had lost
his wallet and credits cards, but was still in possession of his passport. As a
consequence, on 7 November 2012, the Claimant / Counter-Respondent sent a
letter to the Respondent I / Counter-Claimant’s agent informing the latter that
the Respondent I / Counter-Claimant’s behaviour constituted a serious breach
of the contract and that therefore the sanctions provided by article 5 par. 2 of
the contract would therefore be imposed. In view of the foregoing, the
Claimant / Counter-Respondent explains that on 19 November 2012 a meeting
was held with the Respondent I / Counter-Claimant during which a decision
was taken to impose the following disciplinary sanctions on the Respondent I /
Counter-Claimant: obligation to train with the U-19 team, non-payment of the
salary due during the absence and decrease of 50% of the his salary from
November 2012 to February 2013. According to the Claimant / CounterRespondent, these sanctions were formally notified to the Respondent I /
Counter-Claimant via his agent on 20 November 2012.
14. The Claimant / Counter-Respondent further stresses on the Respondent I /
Counter-Claimant’s failure to report back to the Claimant / CounterRespondent after the U-20 Championship. In this respect, the Claimant /
Counter-Respondent alleges that between 14 February 2013 and 4 March 2013,
i.e. the date of termination of the contract by the Respondent I / CounterClaimant, it tried on many occasions to find an amicable solution to the matter
at hand, however to no avail.
15. In light of the above-mentioned, the Claimant / Counter-Respondent sustains
that it is actually the Respondent I / Counter-Claimant who has breached the
contract without just cause. The Respondent I / Counter-Claimant has failed to
return on time on two occasions, missing a significant number of official
matches.
Club Z, from country S / Player J, from country P / Club U, from country P
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16. Finally, the Claimant / Counter-Respondent maintains that the Respondent I /
Counter-Claimant has apparently signed a contract with the club from country
P, Club U (hereinafter: the Respondent II) on 20 March 2013, thus the latter
should be held jointly and severally liable for the payment of compensation
amounting to EUR 2,000,000 for the breach of the employment contract by the
Respondent I / Counter-Claimant.
17. In its reply, the Respondent II rejects any kind of wrong doing and stresses that
it always acted legitimately in accordance with national and international
regulations. According to the Respondent II, it was contacted by the
Respondent I / Counter-Claimant on 11 March 2013 and informed that he had
effectively terminated his employment contract with the Claimant / CounterRespondent and that he was consequently a “free agent”. The Respondent II
alleges that the Respondent I / Counter-Claimant presented a letter dated 7
March 2013 and drafted by the “Agremiación de Fútbolistas Profesionales”,
confirming the foregoing information.
18. On 2 May 2013, the Respondent I / Counter-Claimant lodged a counterclaim
against the Claimant / Counter-Respondent requesting to be awarded with
EUR 130,000, broken down as follows:
-
EUR 95,000 as compensation;
EUR 35,000 as “an estimate of expenses for medical treatment to be
undergone the next two years”.
19. In his counterclaim, the Respondent I / Counter-Claimant first of all stresses
that his first absence cannot be considered as a disciplinary infringement since
it was due to the loss of his residence card and the Claimant / CounterRespondent was duly informed of it.
20. In continuation, the Respondent I / Counter-Claimant maintains that the
disciplinary proceedings carried out on 19 November 2012 violated the basic
procedural rules, in particular his right to be heard. According to the
Respondent I / Counter-Claimant, he was not provided with an adequate
translator and therefore was unable to understand the accusations and
present his defence. The Respondent I / Counter-Claimant also states that the
Claimant / Counter-Respondent failed to properly notify the disciplinary
sanctions to him.
21. In addition, the Respondent I / Counter-Claimant asserts that the Claimant /
Counter-Respondent violated the principle of “causation”. In this respect, the
Respondent I / Counter-Claimant explains that the Claimant / CounterRespondent justified the sanction by his disciplinary misconduct while the
actual cause, as evidenced by the letter dated 7 November 2012, was the bad
Club Z, from country S / Player J, from country P / Club U, from country P
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sporting results obtained during his absence. In this regard, the Respondent I /
Counter-Claimant sustains that there is no evidence that his participation in
the games would have led to a different result and therefore concludes that
the sanction has no cause.
22. Furthermore, the Respondent I / Counter-Claimant affirms that the sanction
applied, i.e. the reduction of his salary, exceeded what was provided by the
contract. According to the Respondent I / Counter-Claimant, for the period
from November 2012 to January 2013, the contract entitled him to a salary of
EUR 10,200 gross. Therefore, and considering the sanction to reduce his salary
by 50%, the Respondent I / Counter-Claimant should have received EUR 5,100
gross; however, the Respondent I / Counter-Claimant maintains having only
received EUR 2,319.88, i.e. a 71% reduction was applied. Additionally, the
Respondent I / Counter-Claimant points out that the Claimant / CounterRespondent undertook to withhold EUR 400 per month from his salary in order
to pay his rent, but failed to make these payments for three months without
refunding him. The Respondent I / Counter-Claimant concludes that this drastic
reduction of his wages may be deemed as a lack of payment of salaries for
three consecutive months entitling him to terminate the contract with just
cause.
23. Subsequently, the Respondent I / Counter-Claimant outlines that the Claimant /
Counter-Respondent failed to provide him with the adequate medical support
and treatment for the mental disorder from which he was suffering as from
early January 2012. In this regard, the Respondent I / Counter-Claimant points
out that in January 2012, the Claimant / Counter-Respondent’s doctor
prescribed him alprazolam, which according to the Respondent I / CounterClaimant is medication used to treat mental health problems, and deduces
therefrom that the Claimant / Counter-Respondent was aware of his illness
since then but did not take any measures to help him.
24. Moreover, the Respondent I / Counter-Claimant states that the amount set in
art. 6 par. 11 of the contract is disproportionate as it corresponds to more than
49 yearly salaries.
25. Finally, the Respondent I / Counter-Claimant asserts that he never engaged in
transfer negotiations while he was under contract with the Claimant / CounterRespondent and that the Respondent II did not induce him to terminate the
contract. In this respect, the Respondent I / Counter-Claimant alleges that the
negotiations were undertaken without his authorisation by people directly
linked to the agency in charge of his representation.
26. In response to the Respondent I / Counter-Claimant’s counterclaim, the
Claimant / Counter-Respondent recalls that it was only informed of the
Respondent I / Counter-Claimant’s medical condition on 28 November 2012. In
Club Z, from country S / Player J, from country P / Club U, from country P
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this respect, the Claimant / Counter-Respondent stresses that said medical
report states that “slight to medium depressingness is present” and that
“working potential is actually preserved”. Additionally, the Claimant /
Counter-Respondent asserts that alprazolam is usually used to treat short term
anxiety and sadness.
27. In continuation, the Claimant / Counter-Respondent explains that the
Respondent I / Counter-Claimant did not provide any evidence, such as a police
report, in order to sustain that his first absence was unavoidable.
28. Furthermore, the Claimant / Counter-Respondent insists that the Respondent I /
Counter-Claimant’s right of defence was preserved in the disciplinary
proceedings. In this regard, the Claimant / Counter-Respondent highlights that
the Respondent I / Counter-Claimant was assisted by his official agent during
the hearing, that the sanction was communicated to him through his agent
and that he had the opportunity to challenge the decision.
29. The Claimant / Counter-Respondent further insists that the reduction of wages
was imposed on a temporary basis in accordance with the contract. It also
mentions that the Respondent I / Counter-Claimant was never deprived of
income and received financial aid from his agent. The Claimant / CounterRespondent explains that it withheld the rental contributions due to
outstanding debts the Respondent I / Counter-Claimant had towards the
landlord and remained prepared to pay these contributions either to the
landlord or to the Respondent I / Counter-Claimant upon the latter’s request.
30. As to the amount set in the compensation clause, the Claimant / CounterRespondent argues that it cannot be considered disproportionate since the
Respondent I / Counter-Claimant was subsequently transferred from the
Respondent II to Club M for a transfer fee of two to three millions euros. The
Claimant / Counter-Respondent also mentions that the Respondent I / CounterClaimant’s first calls with the A team from country P in the meantime evidence
that the amount is proportionate.
31. Finally, the Claimant / Counter-Respondent requests FIFA to impose sporting
sanctions both on the Respondent I / Counter-Claimant and the Respondent II.
In this respect, the Claimant / Counter-Respondent highlights that the
Respondent II failed to comply with the obligations provided by art. 18 par. 3
of the Regulations on the Status and Transfer of Players.
32. In his duplica, the Respondent I
argumentation submitted previously.
/
Counter-Claimant
reiterates
the
33. In spite of having been invited to do so, the Respondent II did not submit
additional comments.
Club Z, from country S / Player J, from country P / Club U, from country P
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34. On 20 March 2013, the Respondent I / Counter-Claimant and the Respondent II
concluded an employment contract, valid as of the date of signature until 31
December 2014 and entitling the Respondent I / Counter-Claimant to a
monthly salary of USD 3,000 (approx. EUR 2,320). In this regard, the Football
Federation from country P was authorised to provisionally register the
Respondent I / Counter-Claimant with the Respondent II by decision of the
Single Judge of the Player’s Status Committee dated 26 April 2013, after the
Football Association from country S rejected the delivery of the ITC and the
Football Federation from country P submitted a request for provisional
registration of the Respondent I / Counter-Claimant.
35. In spite of having been invited to do so, the Respondent I / Counter-Claimant
did not inform FIFA about his new contractual situation. Nevertheless,
according to the information contained in the Transfer Matching System
(TMS), on 29 August 2013, the Respondent II and Club M concluded an
agreement for the loan of the Respondent I / Counter-Claimant until 30 June
2014. According to such agreement the Respondent I / Counter-Claimant
received a monthly salary of EUR 15,800 during the loan period. Subsequently,
as per the documentation uploaded into TMS, on 25 April 2014, the
Respondent I / Counter-Claimant and Club M, concluded an employment
contract, valid as of 1 July 2014 until 30 June 2017 and according to which the
Respondent I / Counter-Claimant was entitled to receive, inter alia, EUR 23,700
per month for the 2014-15 season.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to
FIFA on 12 March 2013. Consequently, the 2012 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf.
art. 21 of the 2012 and 2014 editions of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2014) the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with
an international dimension between an club from country S, a player from
country P and club from country P.
Club Z, from country S / Player J, from country P / Club U, from country P
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3.
In continuation, the Chamber analysed which regulations should be applicable
as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2012 and 2014), and considering that the original
claim in the present matter was lodged on 12 March 2013, the 2012 edition of
said regulations (hereinafter: Regulations) is applicable to the matter at hand
as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, entering into the substance of the matter, the members of the
Chamber started by acknowledging the facts as well as the documentation
contained in the file. However, the Chamber emphasised that in the following
considerations it will refer only to facts, arguments and documentary evidence
which it considered pertinent for the assessment of the matter at hand.
5.
In this respect, the DRC acknowledged that, on 21 August 2011, the parties
signed an employment contract, valid as from 23 August 2011 until 31 May
2015, according to which the Respondent I / Counter-Claimant was entitled to
receive a monthly salary of EUR 3,400.
6.
Furthermore, the Chamber also took note that it is uncontested by both
parties that the Respondent I / Counter-Claimant terminated in writing the
contractual relationship on 4 March 2013 after having given a two-day default
notice to the Claimant / Counter-Respondent on 26 February 2012. Besides, the
members of the Chamber noted that the Claimant / Counter-Respondent
replied to the default notice within the deadline and invited the Respondent I
/ Counter-Claimant to a meeting in order to discuss the issue. The members of
the Chamber also observed that the Respondent I / Counter-Claimant declined
the aforementioned invitation and subsequently, entered into an employment
contract with the Respondent II on 20 March 2013.
7.
In this regard, the Chamber took note of the argumentation of the
Respondent I / Counter-Claimant, who insisted on the fact that the Claimant /
Counter-Respondent failed to provide him with medical support in spite of
having been informed of his mental disorder in January 2012. Moreover, the
DRC observed that according to the Respondent I / Counter-Claimant, the
disciplinary sanction taken by the Claimant / Counter-Respondent, i.e. the
reduction of his salary, apart from having been imposed on him in violation of
his right to be heard, exceeded what was provided by the contract. In this
respect, the Chamber took note that the Respondent I / Counter-Claimant
considered that the reduction of wages as of November 2012 equated to a lack
of payment of three monthly salaries. The members then noted that the
Respondent I / Counter-Claimant sustained that his first absence was due to
the loss of his residence permit.
Club Z, from country S / Player J, from country P / Club U, from country P
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8.
In continuation, the Chamber observed that the Claimant / CounterRespondent pointed out that on two occasions, i.e. as of 16 October 2012 until
16 November and as of 8 February 2013 until the termination of the contract,
the Respondent I / Counter-Claimant was absent without its consent, which,
according to the Claimant / Counter-Respondent, constitutes a breach of
contract. The Chamber further took due note of the Claimant / CounterRespondent’s argument, according to which it was only informed of the
Respondent I / Counter-Claimant’s mental condition in November 2012 when
the latter provided it with a medical report as well as a letter in which he
explained that he would continue his treatment in country S. In addition, the
DRC noted that according to the Claimant / Counter-Respondent, the
reduction of wages was only imposed on a temporary basis and on the basis of
a transparent procedure.
9.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim and counterclaim
respectively lodged by the parties, was to determine whether the employment
contract had been unilaterally terminated with or without just cause by the
Respondent I / Counter-Claimant, 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
was 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.
10. In view of the above, the Chamber subsequently went on to deliberate as to
whether the lack of medical support and the excessive reduction of wages,
which are invoked by the Respondent I / Counter-Claimant in its defence, can
be considered as a just cause for the Respondent I / Counter-Claimant to have
prematurely terminated the employment relationship.
11. In this context, whilst referring to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, the Chamber deemed necessary to highlight
that the Respondent I / Counter-Claimant had not presented substantial
evidence proving that he suffered a serious mental disorder and that the
Claimant / Counter-Respondent failed to provide him with medical support in
spite of being aware of it since January 2012. On the other hand, the Chamber
pointed out that the Claimant / Counter-Respondent submitted documentary
evidence showing that at the end of November 2012, the Respondent I /
Counter-Claimant informed it that he had already planned to follow a medical
treatment with a doctor from country S in order to treat his mental disorder,
i.e. a “slight to medium depressingness” according to the medical report
provided. In addition, the DRC deemed useful to stress that the Respondent I /
Club Z, from country S / Player J, from country P / Club U, from country P
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Counter-Claimant then left definitively country S at the beginning of
December 2012, i.e. a few days later, and therefore did not give the Claimant /
Counter-Respondent the opportunity to take any measure.
12. In continuation, the Chamber deemed fit to recall that the disciplinary sanction
was imposed by the Claimant / Counter-Respondent on 19 November 2012 and
notified to the Respondent I / Counter-Claimant through his agent the next
day; however the latter sanction had never been challenged by the
Respondent I / Counter-Claimant before 26 February 2013, i.e. more than three
months later. In addition, the DRC deemed also useful to mention that in his
counterclaim, the Respondent I / Counter-Claimant did not request to be
awarded any arrears.
13. Furthermore, the members of the Chamber wished to emphasise that the
Respondent I / Counter-Claimant only gave the Claimant / Counter-Respondent
a two-day notice for the compliance with its alleged obligations, which
according to the longstanding jurisprudence of the Chamber, do not constitute
a reasonable deadline for a party to be able to comply with its duties, in
particular considering the alleged obligations in default and the fact that the
Respondent I / Counter-Claimant was in country P.
14. As far as the absences are concerned, the Chamber reverted to the content of
art. 12 par. 3 of the Procedural Rules and outlined that the Respondent I /
Counter-Claimant did not submit any official element attesting that he had
actually lost his papers and, therefore, that he could not return to country S.
Furthermore, the Chamber was eager to underline that on occasion of both
absences, the Claimant / Counter-Respondent requested the Respondent I /
Counter-Claimant to resume his activities. In addition, the DRC lent emphasis
on the Claimant / Counter-Respondent’s goodwill, which replied to the default
notice within the two-day deadline, inviting the Respondent I / CounterClaimant to a meeting in order to discuss the issue; proposal that was declined
by the latter.
15. Accordingly, and taking into account the above-mentioned considerations,
the Chamber concluded that the Respondent I / Counter-Claimant did not have
just cause to unilaterally terminate the employment contract on 4 March 2013
and that, consequently, the Respondent I / Counter-Claimant is to be held
liable for the early termination of the contract without just cause.
16. Consequently, the Chamber determined that the counter-claim lodged by the
Respondent I / Counter-Claimant should be fully rejected.
17. In light of the foregoing, the DRC established that, in accordance with art. 17
par. 1 of the Regulations, the Respondent I / Counter-Claimant is liable to pay
compensation to the Claimant / Counter-Respondent. Furthermore, in
Club Z, from country S / Player J, from country P / Club U, from country P
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accordance with the unambiguous content of article 17 par. 2 of the
Regulations, the Chamber established that the Respondent I / CounterClaimant’s new club, i.e. the Respondent II, shall be jointly and severally liable
for the payment of compensation. In this respect, the Chamber was eager to
point out that the joint liability of the Respondent I / Counter-Claimant’s new
club is independent from the question as to whether the new club has induced
the contractual breach. This conclusion is in line with the well-established
jurisprudence of the Chamber and has been repeatedly confirmed by the Court
of Arbitration for Sport.
18. Having stated the above, the Chamber focused 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 reiterated 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 Respondent I /
Counter-Claimant under the existing contract and/or the new contract(s), the
time remaining on the existing contract up to a maximum of five years as well
as the fees and expenses paid or incurred by the former club (amortised over
the term of the contract) and whether the contractual breach falls within a
protected period. The DRC recalled that the list of objective criteria is not
exhaustive and that the broad scope of criteria indicated tends to ensure that
a just and fair amount of compensation is awarded to the prejudiced party.
19. In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the relevant employment contract between the
Respondent I / Counter-Claimant and the Claimant / Counter-Respondent
contains a provision by means of which the parties had beforehand agreed
upon an amount of compensation for breach of contract. The members of the
Chamber recalled the content of art. 7 of the contract which provides, inter
alia that “regardless the previous termination clauses, at any time during the
length of his contract, regardless protected or non-protected period and/or in
or out of the transfers windows, the Player and/or a club interested in his
professional services as football player can terminate the present employment
contract and fully recover his federative and registration rights and his right to
sign a new employment contract with a new club, by paying the amount of
2.000.000,- EUR two million EUR) to the account of the Club stated in the
Contract (…)”.
20. In this regard, the members of the Chamber observed that this clause does not
refer to the concept of compensation to be paid in case of breach of contract.
On the contrary, the clause rather constitutes a “buy-out” clause setting the
payment of a certain amount in exchange for the Respondent I / Counter-
Club Z, from country S / Player J, from country P / Club U, from country P
Page 12 of 15
Claimant to freely leave the Claimant / Counter-Respondent without any risk
of being deemed in breach of contract. The Chamber thus held that the abovementioned article could not be considered as a clause by which both parties to
the contract had agreed to the amount due, in case of termination of the
contract without just cause.
21. As a consequence, the members of the Chamber determined that the setback
suffered by the Claimant / Counter-Respondent in the present matter had to
be assessed in application of the other parameters set out in art. 17 par. 1 of
the Regulations. In this regard, the DRC 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, as well as the Chamber’s specific knowledge of the
world of football and its experience gained throughout the years.
22. Consequently, in order to estimate the amount of compensation due to the
Claimant / Counter-Respondent in the present case, the Chamber firstly turned
its attention to the remuneration and other benefits due to the Respondent I /
Counter-Claimant under the existing contract and the new contract(s), which
criterion was considered by the Chamber to be essential. In this context, the
members of the Chamber deemed it important to emphasise that the wording
of art. 17 par. 1 of the Regulations allows the DRC to take into consideration
both the existing contract and the new contract(s) in the calculation of the
amount of compensation, thus enabling the Chamber to gather indications as
to the economic value attributed to a player by both his former and his new
club(s).
23. In this regard, the DRC established, on the one hand, that the employment
contract between the Claimant / Counter-Respondent and the Respondent I /
Counter-Claimant, signed on 21 August 2011, had been set to expire on 31
May 2015. Therefore, as of 4 March 2013, i.e. the date of the breach, the total
value of the Respondent / Counter-Claimant’s employment agreement with
the Claimant / Counter-Respondent for the remaining contractual period
amounted to EUR 91,800. On the other hand, the members of the Chamber
established that should the Respondent I / Counter-Claimant have stayed with
the Respondent II until the date of expiry of the contract concluded with the
Claimant / Counter-Respondent, i.e. 31 May 2015, he would have been entitled
to receive an amount of EUR 62,640. On the basis of the aforementioned
financial contractual elements, the Chamber concluded that the average of
remuneration between the contracts concluded by the Respondent I / CounterClaimant respectively with the Claimant / Counter-Respondent and the
Respondent II over the relevant period amounted to EUR 77,220.
24. Consequently, on account of the above-mentioned considerations, the
Chamber decided that the Respondent I / Counter-Claimant must pay the
Club Z, from country S / Player J, from country P / Club U, from country P
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amount of EUR 77,220 to the Claimant / Counter-Respondent as compensation
for breach of contract. In addition and with regard to the Claimant / CounterRespondent’s request for interest, the Chamber decided that the Claimant /
Counter-Respondent is entitled to 5% interest p.a. on said amount as of 12
March 2013 until the date of effective payment. Furthermore, the Respondent
II is jointly and severally liable for the payment of the relevant compensation
(cf. point II.17 above).
25. Furthermore, the Chamber held that the Claimant / Counter-Respondent’s
claim pertaining to legal costs is rejected in accordance with art. 18 par. 4 of
the Procedural Rules and the Chamber’s respective longstanding jurisprudence.
26. The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant /
Counter-Respondent are rejected.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Club Z, is partially accepted.
2.
The counterclaim of the Respondent I / Counter-Claimant, Player J, is rejected.
3.
The Respondent I / Counter-Claimant is ordered to pay to the Claimant /
Counter-Respondent within 30 days as from the date of notification of this
decision, compensation for breach of contract in the amount of EUR 77,220
plus 5% interest p.a. on said amount as from 12 March 2013 until the date of
effective payment.
4.
The Respondent II, Club U, is jointly and severally liable for the payment of the
aforementioned compensation.
5.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned point 3 is not paid by the Respondent within the stated time
limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent I /
Counter-Claimant and the Respondent II 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.
7.
Any further claims lodged by the Claimant / Counter-Respondent are rejected.
Club Z, from country S / Player J, from country P / Club U, from country P
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*****
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
Club Z, from country S / Player J, from country P / Club U, from country P
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