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 G, from country C
as Claimant / Counter-Respondent
against the player,
Player L, from country B
as Respondent I / Counter-Claimant
and the club,
Club V, from country B
as Respondent II
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 15 February 2013, Club G, from country C (hereinafter: the Claimant / CounterRespondent), and Player L, from country B (hereinafter: the Respondent I / CounterClaimant), signed an employment contract (hereinafter: the contract) valid as from
the date of signature until 31 December 2014, i.e. 2 years.
2.
According to the contract:
a)
Art. 5.1.(1): “Basic wage is USD 96,250 per month (after tax) from 15 February
2013 to 31 December 2013. Wage payment time is the 20th day of every month
since 20 March 2013 (totally 10 moths).”
b) Art. 5.1.(2): “Basic wage is USD 91,667 per month (after tax) from 1 January 2014
to 31 December 2014. Wage payment time is the 20th day of every month since
20 January 2014 (totally 12 moths).”
c)
Art. 12.2.(5): “[The Claimant / Counter-Respondent] may cancel the contract in
case any of the following occurs: (5) [the Respondent I / Counter-Claimant]
concurrently has an employment relationship with another party, which
materially affects the performance of the contract, and [the Respondent I /
Counter-Claimant] refuses to rectify the matter upon [the Claimant / CounterRespondent]’s request.”
d) Art. 13.1: “Any dispute during the performance of this contract shall be solved by
negotiation.”
3.
On 15 February 2013, the Claimant / Counter-Respondent and the Respondent I /
Counter-Claimant also signed a supplemental agreement (hereinafter: the
agreement) valid for the same period as the contract.
4.
According to the agreement:
a)
Art. V.2.: “If [the Respondent I / Counter-Claimant] breaches the agreement to
cancel the contract […], [the Respondent I / Counter-Claimant] shall pay a
penalty of USD 500,000.”
b) Art. V.12.: “If penalty above mentioned from Sub-Clause 2 to 10 can not enough
compensate the losses of [the Claimant / Counter-Respondent], [the Respondent I
/ Counter-Claimant] shall continue to compensate all losses to [the Claimant /
Counter-Respondent].”
c)
Art. VII.2.: “If the working contract is terminated or be unilaterally cancelled in
accordance with Clause 12 of the working contract […], [the Respondent I /
Counter-Claimant] shall have not right to demand any compensation or request
[the Claimant / Counter-Respondent] to pay any fees and bear any
responsibility.”
Club G, from country C / Player L, from country B / Club V, from country B
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5.
The Claimant / Counter-Respondent, the Respondent I / Counter-Claimant and Club V
(hereinafter: the Respondent II) signed an undated loan contract (hereinafter: the
loan) valid as from 15 July 2013 until 31 December 2013.
6.
According to the loan:
a)
Art. 3: “[The Respondent II] shall pay [to the Claimant / Counter-Respondent]
USD 0 as loan fee.”
b) Art. 5.2.: “[The Respondent II] shall guarantee to complete all the procedures to
ensure [the Respondent I / Counter-Claimant] can return back to [the Claimant /
Counter-Respondent] before 10 January 2014 (include but not limit all
procedures make [the Respondent I / Counter-Claimant] come back to [the
Claimant / Counter-Respondent]). Otherwise, [the Respondent II] shall pay USD
900,000 to [the Claimant / Counter-Respondent] as compensation.”
c)
Art. 5.5.: [[The Respondent II]’s Duties and guaranties] “Undertake [the
Respondent I / Counter-Claimant]’s remuneration from 15 July 2013 to 31
December 2013, and [the Respondent I / Counter-Claimant]’s board, travel,
insurance and medical expense during the loan period, total remuneration will
be USD 275,000 (net).”
d) Art. 5.6.: “[The Respondent II] shall pay [to the Claimant / Counter-Respondent]
USD 1,200,000 as compensation if [the Respondent I / Counter-Claimant]
terminates the work contract and loan agreement with [the Claimant / CounterRespondent] due to [the Respondent II]’s fault.”
e)
Art. 5.7.: “[The Respondent II] will pay [the Respondent I / Counter-Claimant]’s
monthly salary in case [the Respondent I / Counter-Claimant] gets injured during
the loan period (July 2013 – December 2013) till [the Respondent I / CounterClaimant]’s recover.”
f)
Art. 6.1.: [[The Respondent I / Counter-Claimant]’s Duties and guaranties] “Shall
guarantee to complete all the procedures to ensure [the Respondent I / CounterClaimant] can return back to [the Claimant / Counter-Respondent] before 10
January 2014 (include but not limit the all procedures make [the Respondent I /
Counter-Claimant] come back to [the Claimant / Counter-Respondent]).
Otherwise, [the Respondent I / Counter-Claimant] shall pay USD 1,200,000 to [the
Claimant / Counter-Respondent] as compensation.”
g) Art. 6.3.: “[The Respondent I / Counter-Claimant] agrees [the Claimant / CounterRespondent] shall undertake [the Respondent I / Counter-Claimant]’s monthly
remuneration USD 46,250 within the loan period (totally 5.5. months, USD
254,375 net); [the Respondent II] shall undertake [the Respondent I / CounterClaimant]’s monthly remuneration USD 50,000 net within the loan period (totally
5.5. months, USD 275,000 net).”
h) Art. 7.4.: “On the date of the termination of this Contract, [the Respondent II]
and [the Respondent I / Counter-Claimant] shall conduct all the matters for the
[the Respondent I / Counter-Claimant]’s return to [the Claimant / CounterRespondent] immediately and unconditionally (including but not limited to
Club G, from country C / Player L, from country B / Club V, from country B
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complete the transaction within 10 days after the termination of this Contract).
And [the Respondent II] shall guarantee that the [the Respondent I / CounterClaimant] returns to [the Claimant / Counter-Respondent] within 10 days after
the termination of this Contract. Otherwise [the Respondent II] shall pay a
penalty of USD 1,200,000.”
i)
Art. 9.1.: “[The Respondent II] and [the Respondent I / Counter-Claimant] shall
undertake the joint and several liabilities according to the contract.”
j)
Art. 9.2.: “The loan period should include the period of round-trip journey.”
k)
Art. 9.5.: “The amount of any Compensation that shall be paid to [the Claimant /
Counter-Respondent] which is titled in the Contract should be paid in full by [the
Respondent II] and the [the Respondent I / Counter-Claimant] within 15 days
after receiving the notification of [the Claimant / Counter-Respondent].
Otherwise [the Respondent II] and [the Respondent I / Counter-Claimant] shall
pay a penalty of USD 10,000 for every expired day.”
l)
Art. 9.6.: “If [the Respondent II] wish to transfer [the Respondent I / CounterClaimant] from [the Claimant / Counter-Respondent] after the loan period (July
2013 – December 2013), the transfer fee shall be not less than USD 1,200,000.”
m) Art. 8.2.: “Any dispute during the performance of this contract shall be solved by
negotiation.”
7.
On 14 February 2014, the Claimant / Counter-Respondent terminated the
employment contract with the Respondent I / Counter-Claimant, in writing, based on
the absence of the Respondent I / Counter-Claimant for allegedly more than a month
in the Claimant / Counter-Respondent’s training camp.
Claimant / Counter-Respondent’s claim
8.
On 17 February 2014, the Claimant / Counter-Respondent lodged a claim before FIFA
against the Respondent I / Counter-Claimant and the Respondent II, requesting, after
amending its claim, sporting sanctions on the Respondent I / Counter-Claimant and
the Respondent II, legal costs, procedural costs and the payment of the total amount
of USD 4,950,006, plus 5% interest p.a. from the breach of the contract and the loan
until the date of effective payment, broken down as follows:
a)
USD 1,200,000 from the Respondent I / Counter-Claimant, as compensation for
breach of the loan in accordance with art. 6.1 of the loan (cf. point I.6.f) above),
plus a daily penalty of USD 10,000 as from 20 January 2014;
b) USD 900,000 from the Respondent II, as compensation for breach of the loan in
accordance with art. 7.4 of the loan (cf. point I.6.h) above), plus a daily penalty
of USD 10,000 as from 20 January 2014;
c) USD 1,650,006 from the Respondent I / Counter-Claimant, as compensation for
breach of the contract, corresponding to USD 1,100,004, as residual value of the
contract in accordance with the Regulations on the Status and Transfer of
Club G, from country C / Player L, from country B / Club V, from country B
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Players, and USD 550,002, as an additional 6 (six) months of salary under the
contract to cover the damages arising from the specificity of sport;
d) USD 1,200,000 from the Respondent II, as compensation for breach of contract in
accordance with art. 5.6 of the loan (cf. point I.6.d) above).
9.
The Claimant / Counter-Respondent claims that the Respondent II sent a fax on 9
January 2014 requesting permission to keep the player with them until his full
recovery from an injury but the Claimant / Counter-Respondent never gave its
permission to do so.
10. On 20 January 2014, the Claimant / Counter-Respondent would have sent two letters
to the Respondent I / Counter-Claimant and the Respondent II, respectively,
requesting from the Respondent I / Counter-Claimant to “communicate the exact
date you will return” and from the Respondent I / Counter-Claimant and the
Respondent II to “pay […] the USD 1,200,000 agreed as compensation within the
next 15 days”. However, the Claimant / Counter-Respondent did not receive any
answer from them.
11. On 10 February 2014, the Claimant / Counter-Respondent warned in writing allegedly
for the second time both the Respondent I / Counter-Claimant and the Respondent II
of the breach of the contract and the loan, indicating to the Respondent I / CounterClaimant that “[the Claimant / Counter-Respondent] must consider that [the
Respondent I / Counter-Claimant] terminated without just cause the employment
contract as [the Respondent I / Counter-Claimant has] missed the last 40 days of
training without any explanation.”
12. On 12 February 2014, the Respondent I / Counter-Claimant informed the Claimant /
Counter-Respondent that he was “completely ready to fulfil [his] obligations towards
my employment contract with [the Claimant / Counter-Respondent]” and requested
to be informed about the details of the flight to be booked by the Claimant /
Counter-Respondent.
13. Consequently, the Claimant / Counter-Respondent states that the Respondent I /
Counter-Claimant did not return on time and breached the loan and the contract.
Thus, it terminated the contract and the loan on 14 February 2014 (cf. point I.7.
above).
14. Regarding the requested compensation, the Claimant / Counter-Respondent explains
that the Respondent I / Counter-Claimant additionally breached the contract and
should, therefore, pay USD 1,100,004 according to the Regulations on the Status and
Transfer of Players and USD 550,002 in application of the specificity of sport.
15. In this sense, the Claimant / Counter-Respondent indicates that the residual value of
the contract is USD 1,100,004.
16. Furthermore, the Claimant / Counter-Respondent refers to the amount of USD
550,002 as being an additional 6 (six) months of salary under the contract to cover
the damages arising from the specificity of sport.
Club G, from country C / Player L, from country B / Club V, from country B
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Respondent I / Counter-Claimant’s claim
17. On 21 February 2014, the Respondent I / Counter-Claimant lodged a claim before
FIFA against the Claimant / Counter-Respondent for breach of contract, requesting
the payment of the total amount of USD 962,504, plus 5% interest p.a. from 14
February 2014 until the date of effective payment.
18. The Respondent I / Counter-Claimant also requests sporting sanctions on the
Claimant / Counter-Respondent, legal costs and procedural costs.
19. In his claim, the Respondent I / Counter-Claimant states that he suffered a serious
injury on 28 July 2013 that required a surgery and a 6-months recovery period, which
was informed by the Respondent II to the Claimant / Counter-Respondent by means
of a letter dated 31 July 2013.
20. On 8 August 2013, the Claimant / Counter-Respondent answered the aforementioned letter and informed the Respondent II in writing that “we agree [the
Respondent II] to find appropriate hospital for the [Respondent I / Counter-Claimant]
to have the surgery in country B” and requested the Respondent II “to cover all
expense of [the Respondent I / Counter-Claimant]’s medical treatment, rehabilitation
and [the Respondent I / Counter-Claimant]’s remuneration until his recover”.
21. On 9 January 2014, the Respondent II requested the Claimant / Counter-Respondent’s
“authorization for the [Respondent I / Counter-Claimant] to stay in country B for the
period of additional 30 (thirty) days” (cf. point I.9. above).
22. The Respondent I / Counter-Claimant argues that the Claimant / Counter-Respondent
had reached the quota of foreign players stipulated by the country C Football
Association’s regulations (hereinafter: the country C Football Association’s
regulations) and because of the foregoing it did not request the ITC for his return
and it was not interested on his services.
23. Additionally, the Respondent I / Counter-Claimant claims to have informed the
Claimant / Counter-Respondent of his willingness to resume his activities with the
Claimant / Counter-Respondent on 12 February 2014, as already referred to in point
I.12. above, and sustains that the Respondent II also sent a letter to the Claimant /
Counter-Respondent in this sense, indicating that it was arranging the return of the
Respondent I / Counter-Claimant to the Claimant / Counter-Respondent.
24. Moreover, the Respondent I / Counter-Claimant states that only “after termination of
contract by [the Claimant / Counter-Respondent on 14 February 2014], the
[Respondent I / Counter-Claimant] was provided by [the Respondent II] with a letter
sent on 10 February 2014 by [the Claimant / Counter-Respondent] to [the Respondent
II], by means of which [the Claimant / Counter-Respondent] was alleging that [the
Respondent II] had breached its Loan Agreement and induced the [Respondent I /
Counter-Claimant] to breach his Employment Contract.”
25. The Respondent I / Counter-Claimant further argues that the termination of the
contract by the Claimant / Counter-Respondent was without just cause because his
absence was due to his rehabilitation process after being injured, which the Claimant
Club G, from country C / Player L, from country B / Club V, from country B
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/ Counter-Respondent authorized by means of its letter dated 8 August 2013 (cf.
point I.20. above). As such, the Respondent I / Counter-Claimant affirms that an
injury may not be considered as just cause to terminate the contract.
26. Finally, the Respondent I / Counter-Claimant claims that the Claimant / CounterRespondent failed to put him in default since he did not receive the letters dated 20
January 2014 and 10 February 2014 (cf. points I.10. and I.11. above). In this sense, the
Respondent I / Counter-Claimant highlights that the Claimant / Counter-Respondent
breached art. 13 of the contract and 8.2. of the loan because the dispute was not
solved by negotiations (cf. points I.2.d) and I.6.m) above).
Claimant / Counter-Respondent’s reply
27. In its reply, the Claimant / Counter-Respondent points out that the Respondent II had
to arrange the return of the Respondent I / Counter-Claimant to the Claimant /
Counter-Respondent as per art. 5.5 of the loan (cf. I.6.c) above).
28. The Claimant / Counter-Respondent also clarifies that it did not invoke an injury as
just cause to terminate the contract but the 42 (forty-two) days of delay of the
Respondent I / Counter-Claimant in returning to country C “without explanation,
without permission and even without answering the letters sent by [the Claimant /
Counter-Respondent]”.
29. Finally, the Claimant / Counter-Respondent emphasises that there was a slot for the
Respondent I / Counter-Claimant in accordance with the country C Football
Association’s regulations until the end of February.
Respondent I / Counter-Claimant’s and Respondent II’s replies
30. In his reply, the Respondent I / Counter-Claimant requests to dismiss the claim of the
Claimant / Counter-Respondent and claims that the Dispute Resolution Chamber
should focus on the exchange of correspondence between the parties in connection
with the Respondent I / Counter-Claimant’s medical issues.
31. In this sense, the Respondent I / Counter-Claimant insists on the fact that the
Claimant / Counter-Respondent authorized him “to remain with Club V until his full
recovery” (cf. point I.20. above).
32. The Respondent I / Counter-Claimant further explains that, after the request sent on
9 January 2014 to the Claimant / Counter-Respondent, the latter did not answer, did
not inform him about the dates of trainings and competitions, did not request any
information on his clinical situation and did not start the ITC procedure.
33. Moreover, the Respondent I / Counter-Claimant claims that the Claimant / CounterRespondent had only an economic interest since its letter allegedly sent on 20
January 2014 offers to “solve this dispute amicably […] paying an amount of USD
1,200,000 agreed as compensation within the next 15 days.”
Club G, from country C / Player L, from country B / Club V, from country B
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34. Finally, the Respondent I / Counter-Claimant stresses that neither him nor the
Respondent II had any sporting or economic advantage from extending the period in
which the Respondent I / Counter-Claimant remained with the Respondent II.
35. As to the compensation requested by the Claimant / Counter-Respondent, the
Respondent I / Counter-Claimant expresses that it is undue and disproportionate
because it is a request to “pay a double kind of compensation for the same damage”,
i.e. not returning to the Claimant / Counter-Respondent after expiration of the loan
period.
36. In addition, the Respondent I / Counter-Claimant argues that, in case of a
compensation award in favour of the Claimant / Counter-Respondent, the loan,
subsequent to the contract, should be used in order to determine the amount of such
a compensation since it contains a penalty clause in case of failure of the Respondent
I / Counter-Claimant to return to the Claimant / Counter-Respondent (cf. point I.6.d)
above).
37. Notwithstanding the foregoing, the Respondent I / Counter-Claimant maintains that
the abovementioned penalty is excessive and has to be reduced by the Dispute
Resolution Chamber considering the nature and duration of the contract, the
seriousness of the misconduct and breach of contract and the economic situation of
the parties.
38. In connection with the compensation for breach of the contract requested by the
Claimant / Counter-Respondent, the Respondent I / Counter-Claimant claims that the
residual value of the contract is USD 962,504. Furthermore, the Respondent I /
Counter-Claimant argues that, in this case, the residual value of the contract does not
represent the actual damage suffered by the Claimant / Counter-Respondent because
it corresponds to an amount that the Claimant / Counter-Respondent did not have to
pay to the Respondent I / Counter-Claimant and also because the value of the
Respondent I / Counter-Claimant’s services decreased as a consequence of his injury.
39. The Respondent II submitted the same arguments and requests as the Respondent I /
Counter-Claimant, acknowledging receipt of the letter dated 10 February 2014 sent
by the Claimant / Counter-Respondent.
40. Additionally, the Respondent II claims that it cannot be considered as the
Respondent I / Counter-Claimant’s new club because it has not signed any
employment contract with the Respondent I / Counter-Claimant after the alleged
breach of contract and still pays the salaries of the Respondent I / Counter-Claimant
after expiration of the loan period to the advantage of the Claimant / CounterRespondent, while fulfilling its obligations according to the loan.
41. Finally, the Respondent II requested to be awarded legal costs and procedural costs.
Club G, from country C / Player L, from country B / Club V, from country B
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Claimant / Counter-Respondent’s replica
42. In continuation, the Claimant / Counter-Respondent argues that the correct
interpretation of art. 5.7 in relation with art. 7.4 of the loan (cf. points. I.6.e) and h)
above) is that the Respondent II had to pay the Respondent I / Counter-Claimant’s
salaries until his rehabilitation but not that the Respondent I / Counter-Claimant
should have remained in country B until then. In this sense, art. 7.4 of the loan clearly
provides for the immediate and unconditional return of the Respondent I / CounterClaimant by 10 January 2014.
43. Consequently, the letter dated 8 August 2013 was sent to remind the Respondent II
of its obligations as per the loan and the Respondent II understood its content
because it sent a letter to the Claimant / Counter-Respondent on 9 January 2014
requesting authorization for the Respondent I / Counter-Claimant to stay in country
B.
44. The Claimant / Counter-Respondent also expresses that in its letter dated 20 January
2014 it requested the return of the Respondent I / Counter-Claimant from the loan
and that an ITC request is not a condition for the return of the Respondent I /
Counter-Claimant.
45. The Claimant / Counter-Respondent further indicates that the compensation to be
paid by the Respondent I / Counter-Claimant and the Respondent II should consider
the specificity of sport since it paid USD 3,500,000 for the transfer of a substitute for
the Respondent I / Counter-Claimant plus the corresponding salaries (cf. point I.29.
above).
46. Finally, the Claimant / Counter-Respondent states that, notwithstanding the fact that
a new employment contract between the Respondent I / Counter-Claimant and the
Respondent II has not been signed, the Respondent II induced the breach of both the
contract and the loan.
Respondent I / Counter-Claimant’s and Respondent II’s replicas
47. In his comments to the Claimant / Counter-Respondent’s reply, the Respondent I /
Counter-Claimant claims that there were more lenient measures than terminating
the contract in case he had actually breached it, especially considering that the
Respondent II and not the Claimant / Counter-Respondent was paying his salaries and
that the Respondent I / Counter-Claimant was still unable to play for the Claimant /
Counter-Respondent, the Respondent II or any other club until 12 February 2014.
48. On the other hand, the Respondent II states that the alleged delay of the
Respondent I / Counter-Claimant to return to the Claimant / Counter-Respondent did
not report any sporting or economic advantage to the Respondent II since the
Respondent I / Counter-Claimant did not play in any official competition for the
latter, although the Respondent II paid his salaries.
Club G, from country C / Player L, from country B / Club V, from country B
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Duplicas
49. The Respondent I / Counter-Claimant adds that an interpretation in good faith of the
letter sent by the Claimant / Counter-Respondent on 8 August 2013 (cf. point I.20.
above) comprises also “to take care of the [Respondent I / Counter-Claimant], in all
aspects”. According to the Respondent I / Counter-Claimant’s interpretation, the
foregoing actually meant an authorization by the Claimant / Counter-Respondent for
the Respondent I / Counter-Claimant to remain in country B until his full
rehabilitation. In this sense, it was reasonable to interpret it in such a way because
the Claimant / Counter-Respondent accepted the treatment proposed by the
Respondent II and there was no reason or advantage to continue such treatment in
country C after the expiration of the loan.
50. As to the Claimant / Counter-Respondent and the Respondent II, both clubs reaffirm
their respective positions and arguments.
51. Finally, the Respondent I / Counter-Claimant informed FIFA that he has been
unemployed since 14 February 2014.
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 17 February
2014. Consequently, the 2012 edition of the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 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 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 a country C club, on one hand, and a country B
player and a country B club, on the other.
3.
Furthermore, the Chamber analysed which edition of the 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 (edition 2014), and considering that the claim of the Claimant / CounterRespondent was lodged on 17 February 2014 and the claim of the Respondent I /
Counter-Claimant, on 21 February 2014, the 2012 edition of said Regulations
(hereinafter: the 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, 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
Club G, from country C / Player L, from country B / Club V, from country B
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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 considered pertinent for the
assessment of the matter at hand.
5.
The members of the Chamber acknowledged that it was undisputed by the parties
that they were contractually bound by the loan, valid as from 15 July 2013 until 31
December 2013, and that the Claimant / Counter-Respondent and the Respondent I /
Counter-Claimant were contractually bound by means of the contract and the
agreement, both valid as from 15 February 2013 until 31 December 2014.
6.
In addition, the DRC pointed out that the parties did not dispute that the
Respondent I / Counter-Claimant suffered an injury on 28 July 2013 and that the
Claimant / Counter-Respondent was informed that the Respondent I / CounterClaimant would require a recovery period of six months, in principle. It is also
undisputed that the Respondent II requested on 9 January 2014 authorization from
the Claimant / Counter-Respondent in order for the Respondent I / Counter-Claimant
to stay in country B until 8 February 2014 and complete his recovery program.
7.
Finally, the DRC also noted that the parties did not dispute that the Claimant /
Counter-Respondent terminated the contract on 14 February 2014, in spite of having
being warned by the Respondent I / Counter-Claimant on 13 February 2014, by
means of his letter dated 10 February 2014, of his readiness to fulfil the contract.
8.
The Chamber further noted that the Claimant / Counter-Respondent, on the one
hand, lodged a claim against the Respondent I / Counter-Claimant and the
Respondent II for breach of contract and inducement, respectively, arguing that it
terminated the contract and the loan with just cause since the Respondent I /
Counter-Claimant breached art. 7.4 of the loan by failing to return to the Claimant /
Counter-Respondent within the respective deadline, i.e. 10 January 2014.
9.
The Chamber also noted that the Respondent I / Counter-Claimant, on the other
hand, lodged a claim against the Claimant / Counter-Respondent for breach of
contract, arguing that the latter terminated the contract and the loan without just
cause since it failed to put him in default and because his alleged failure to comply
with art. 7.4. of the loan was due to the length of his rehabilitation process, which
was previously known and authorized by the Claimant / Counter-Respondent.
10. Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the respective claims of the Claimant / CounterRespondent and the Respondent I / Counter-Claimant, was to determine whether the
employment contract had been unilaterally terminated with or without just cause by
the Claimant / Counter-Respondent.
11. In view of the above, the DRC first of all took into consideration the content of art.
14 of the Regulations, which provides that “a contract may be terminated by either
party without consequences of any kind (either payment of compensation or
imposition of sporting sanctions) where there is just cause”.
12. The Chamber stressed that the definition of just cause and whether just cause exists
shall be established in accordance with the merits of each particular case.
Club G, from country C / Player L, from country B / Club V, from country B
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13. In this sense, the members of the DRC recalled the content of art. 7.4 of the loan,
which provides that “on the date of […] termination of [the loan], [the Respondent I
/ Counter-Claimant] shall return to [the Claimant / Counter-Respondent] immediately
and unconditionally (including but not limited to complete the transaction within 10
days after the termination of this Contract) […]”. Therefore, the Chamber took due
note that the original agreement of the parties was for the Respondent I / CounterClaimant to return from the loan by no later than 10 January 2014.
14. The Chamber noted, however, that the Respondent II requested the authorization of
the Claimant / Counter-Respondent for the Respondent I / Counter-Claimant to stay
in country B in order to complete his recovery treatment before the aforesaid
deadline expired, i.e. on 9 January 2014.
15. In connection with the abovementioned request, the Dispute Resolution Chamber
found it important to note that the Claimant / Counter-Respondent argues that it
never agreed to such request. Nevertheless, according to the information contained
in the Transfer Matching System (TMS), the Claimant / Counter-Respondent entered a
transfer instruction, requesting on 9 January 2014 the International Transfer
Certificate of the Respondent I / Counter-Claimant for his return after the loan,
which it cancelled on the same day. The Chamber formed the belief that, by doing
so, it can be established that the Claimant / Counter-Respondent tacitly consented to
the request of the Respondent II referred to in point II.14. above.
16. Moreover, the members of the DRC took note that the Respondent I / CounterClaimant asserts that, between the request for authorization made on 9 January
2014 and the termination of the contract on 14 February 2014, the Claimant /
Counter-Respondent did not warn the Respondent I / Counter-Claimant of any
breach, neither requested his return.
17. On the other hand, the Claimant / Counter-Respondent argues that it warned the
Respondent I / Counter-Claimant of his misconduct in respect of art. 7.4 of the loan
by means of two letters dated 20 January 2014 and 10 February 2014 allegedly sent
to the Respondent I / Counter-Claimant and the Respondent II (cf. points I.10. and
I.11. above).
18. At this point, the members of the Chamber deemed it appropriate to refer the
parties to art. 12 par. 3 of the Procedural Rules, which stipulates that “any party
claiming a right on the basis of an alleged fact shall carry the burden of proof”.
19. In this regard, the DRC pointed out that the Claimant / Counter-Respondent
submitted a copy of a letter dated 20 January 2014 addressed to the attention of the
Respondent I / Counter-Claimant via the Respondent II but no proof of its delivery. In
light of the counterstatement of both the Respondent I / Counter-Claimant and the
Respondent II that may be found on file, the DRC deemed that no substantial proof
was provided in order to evidence that the alleged email to which the letter would
have being attached was actually received by its addressee. For the avoidance of
doubt, the members of the DRC deemed it appropriate to emphasise that the
addressee of such email is not the Respondent I / Counter-Claimant, who was the
party in need to be warned of any alleged breach.
Club G, from country C / Player L, from country B / Club V, from country B
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20. Likewise, the Chamber pointed out that the Claimant / Counter-Respondent was not
able to provide any proof of delivery of the fax allegedly sent to the Respondent I /
Counter-Claimant on 10 February 2014.
21. Consequently, the DRC concluded that the Claimant/Counter-Respondent was not
able to prove that it had indeed warned the Respondent I / Counter-Claimant of a
breach or misconduct that could justify the termination of the contract. In other
words, the Claimant/Counter-Respondent failed to put the Respondent I / CounterClaimant in default of his alleged breach and never requested his return.
22. In continuation, the Chamber was eager to emphasise that only a breach or
misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, only when there are objective criteria which
do not reasonably permit to expect a continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there are
more lenient measures which can be taken in order for an employer to assure the
employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment
contract can always only be an ultima ratio.
23. Moreover, the DRC observed that, in any case, there would have been more lenient
measures to be taken (e.g., among others, a suspension or a fine) in order to sanction
the alleged misconduct of the Respondent I / Counter-Claimant in respect of art. 7.4
of the loan, which would have consisted of an absence of less than a week,
considering that the Claimant/Counter-Respondent tacitly accepted the extension of
the Respondent I / Counter-Claimant’s recovery treatment.
24. On top of that, the members of the Chamber observed that the Respondent I /
Counter-Claimant notified the Claimant/Counter-Respondent of his readiness to fulfil
the contract on 13 February 2014. However, the Claimant/Counter-Respondent
terminated the contract one day later, i.e. on 14 February 2014.
25. In view of the abovementioned notification, the Chamber was of the opinion that on
13 February 2014, as the Claimant/Counter-Respondent received the Respondent I /
Counter-Claimant’s letter, there was clear and objective evidence that reasonably
permitted the parties to expect a continuation of the employment relationship.
26. Overall, the Chamber decided that the Claimant/Counter-Respondent had no just
cause to unilaterally terminate the employment relationship with the Respondent I /
Counter-Claimant on 14 February 2014 and that, therefore, the Claimant/CounterRespondent had breached the employment contract without just cause.
27. In continuation, the Chamber turned its attention to the consequences of the breach
of contract without just cause by the Claimant/Counter-Respondent in accordance
with art. 17 par. 1 of the Regulations.
28. Taking into consideration art. 17 par. 1 of the Regulations, the DRC decided that the
Respondent I / Counter-Claimant is entitled to receive compensation from the
Claimant/Counter-Respondent for the termination of the contract without just cause
on 14 February 2014.
Club G, from country C / Player L, from country B / Club V, from country B
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29. The members of the Chamber firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including, in particular, the remuneration and
other benefits due to the Respondent I / Counter-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.
30. In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent contracts contain any provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the DRC noted
that the contract, the agreement and the loan did not contain any clause regarding
the amount of compensation payable to the Respondent I / Counter-Claimant by the
Claimant/Counter-Respondent in case of breach of contract.
31. As a consequence, the members of the Chamber determined that such amount of
compensation payable by the Claimant/Counter-Respondent to the the Respondent I
/ Counter-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 article provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of payable compensation. 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 caseby-case basis taking into account all specific circumstances of the respective matter.
32. In order to estimate the amount of compensation due to the Respondent I / CounterClaimant in the present case, the members of the Chamber first turned their
attention to the remuneration and other benefits due to the Respondent I / CounterClaimant 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 highlight 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.
33. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
receivables of the Respondent I / Counter-Claimant under the contract as from its
date of termination without just cause by the Claimant/Counter-Respondent, i.e. 14
February 2014, until 31 December 2014, and concluded that the Respondent I /
Counter-Claimant would have received in total USD 962,504 as remuneration, had
the contract been executed until its expiry date. Consequently, the Chamber
concluded that the amount of USD 962,504 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case at
hand (cf. point I.2.b) above).
34. In continuation, the Chamber verified as to whether the Respondent I / CounterClaimant had signed an employment contract with another club during the relevant
period of time, by means of which he would have been able to reduce his loss of
Club G, from country C / Player L, from country B / Club V, from country B
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income. According to the constant practice of the DRC, such remuneration under a
new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the Respondent I
/ Counter-Claimant's general obligation to mitigate his damages.
35. In this regard, the members of the Chamber noted that the Respondent I / CounterClaimant had not signed any new employment contract within the period of time
between the termination of the contract and its original date of expiry and, thus,
had not been able to mitigate damages. In this context, the Chamber found it
reasonable that the Respondent I / Counter-Claimant had not been able to find new
employment within the relevant period of 10 (ten) months only.
36. Taking into account the Respondent I / Counter-Claimant’s request and considering
that his claim was lodged on 21 February 2014, the Chamber concluded that the
Claimant/Counter-Respondent must pay to the Respondent I / Counter-Claimant USD
962,504, as compensation for breach of contract, plus interest of 5% p.a. on such
amount as from 21 February 2014 until the date of effective payment.
37. With regard to the Respondent I / Counter-Claimant’s claim for legal costs and
procedural costs, the Chamber recalled the contents of art. 18 par. 4 of the
Procedural Rules as well as to its long-standing and well-established jurisprudence,
which clearly stipulates that no procedural compensation is awarded in proceedings
in front of the Dispute Resolution Chamber. Therefore, the members of the Chamber
had no other alternative than to reject this part of the claim.
38. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Respondent I / Counter-Claimant's claim and that the Claimant/Counter-Respondent
must pay the amount of USD 962,504 as compensation for breach of contract in the
case at hand, plus 5% interest p.a. as from 21 February 2014 until the date of
effective payment.
39. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Respondent I / Counter-Claimant is
rejected and that the claim of the Claimant/Counter-Respondent is rejected.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Club G, is rejected.
2.
The claim of the Respondent I / Counter-Claimant, Player L, is partially accepted.
3.
The Claimant / Counter-Respondent is ordered to pay to the Respondent I / CounterClaimant compensation in the amount of USD 962,504, plus 5% interest p.a. as from
21 February 2014 until the date of effective payment, within 30 days as from the
date of notification of this decision.
Club G, from country C / Player L, from country B / Club V, from country B
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4.
In the event that the amount due to the Respondent I / Counter-Claimant in
accordance with the above-mentioned number 3., plus interest, is not paid by the
Claimant / Counter-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.
5.
Any further claims lodged by the Respondent I / Counter-Claimant are rejected.
6.
The Respondent I / Counter-Claimant is directed to inform the Claimant / CounterRespondent immediately and directly of the account number to which the remittance
is to be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The
full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Club G, from country C / Player L, from country B / Club V, from country B
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