Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 4 October 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Abu Nay eem S hohag (Banglades h), member
Alex andra Góm ez Bruinew oud (Uruguay ), member
S tijn Boey kens (Belgium ), member
on the claim presented by the player,
Play er A, Country B
as Claimant / Counter-Respondent
against the club,
Club C, Country D
as Respondent / Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I. Facts of the cas e
1. On 25 July 2017, the player of Country B, Player A (hereinafter: the Claimant /
Counter-Respondent) born on 16 November 1989, and the club of Country D,
Club C (hereinafter: the Respondent / Counter-Claimant), signed an employment
contract (hereinafter: the contract) valid as from the date of the signature until
30 June 2018.
2. The contract established that the Claimant / Counter-Respondent was entitled
inter alia to a monthly salary of currency of Country D (currency of Country D)
2,035,000 payable by the 10th day of each month.
3. Clause 2 of the contract established the following:
“…8. [The Claimant / Counter-Respondent’s] obligations are the following:
…
f) To always cooperate with the managers, trainers, sportsmen of [the
Respondent / Counter-Claimant], to behave in a sporting manner towards people
of [the Respondent / Counter-Claimant], its managers, trainers, professional
management and to have cooperative attitude at the matches, trainings, in the
training camps and at all other occasion, and to make all efforts not to damage
or endanger with his behaviour the physical safety or health of others and no to
cause a moral damage;
…
9. [The Respondent / Counter-Claimant] is obliged:
…
c) To respect and observe the human rights of [the Claimant / CounterRespondent], in particular his right to freedom of expression and the prohibition
on unjustifiable discrimination;
…
The violation of the above obligations is regarded as a material breach of [the
contract] on behalf of [the Respondent / Counter-Claimant], and [the Claimant /
Counter-Respondent] the right of immediate termination.”
4. Moreover, clause 9 of the contract provided that:
“36. [The Respondent / Counter-Claimant] may terminate the employment
relationship with notice:
…
b) If the maintaining of employment relationship becomes impossible due to
unavoidable external reason
…
37. [The Claimant / Counter-Respondent] is entitled to terminate the
employment relationship with notice in the following cases:
…
b) If the maintenance of the employment relationship becomes impossible by
unavoidable circumstances, or if it caused undue harm to [the Respondent /
Counter-Claimant].
Player A, Country B / Club C, Country D
2/15
38. [The Respondent / Counter-Claimant] or [the Claimant / Counter-Respondent]
may terminate [the contract] with immediate effect, if the other party breaches
its obligations in connection with [the contract] intentionally, or with gross
negligence and seriously or otherwise is showing behaviour which makes the
maintenance of the employment relationship impossible.
39. With respect to termination of [the contract] with immediate effect the
below listed cases are in particular serious breach of [the contract] obligations by
[the Claimant / Respondent-Counter-Claimant], or are behaviours which make
the maintenance of the employment relationship:
- the breach by [the Claimant / Counter-Respondent] of the obligations
contained in [Clause 2] of [the contract], or specifically formulated by the
employment contract;
…
- impolite, disrespectful behaviour with the exerciser of human rights of [the
Respondent / Counter-Claimant] or with other superiors, with the members of
the professional staff, or with the players, fans, employees…”
5. In line with the above, clause 10 of the contract established that “Based on
authorization contained in paragraph (1) of article 56 of the Labour Code the
parties agree that in the event of guilty infringement of obligations by [the
Claimant / Counter-Respondent] – in his sole scope of authority and at his own
discretion, instead of the termination with immediate effect of before it – the
following negative legal consequences can be applied by [the Respondent /
Counter-Claimant] against him depending on the weight of the infringement:
a) verbal or written warning;
b) sanction imposing financial loss (cash penalty) in the first case (up to 66% of
monthly wage valid at the time of imposing the sanction);
c) sanction imposing financial loss (cash penalty) in repeated case within one
year after the imposition of the first cash penalty, or any time after imposing the
repeated cash penalty (up to 66% of monthly wage valid at the time of imposing
the sanction)”.
6. In this context, the contract does not contain a clause regarding the financial
consequences in case of breach of contract.
7. On 23 November 2017, the Respondent / Counter-Claimant unilaterally
terminated the contract after the Claimant / Counter-Respondent had an
altercation with one of his teammates (hereinafter: the teammate).
8. In this regard, on 24 November 2017, the legal representative of the Claimant /
Counter-Respondent sent the Respondent / Counter-Claimant an email, which
reads as follows:
“As we spoke yesterday on the phone, you are trying to terminate the contract
of [the Claimant / Counter-Respondent]. We do not agree with this, like I told
you yesterday, a small incident is not a valid reason to terminate [the contract].
These things can happen on a pitch. I suggested yesterday that you could give a
Player A, Country B / Club C, Country D
3/15
disciplinary penalty to the [Claimant / Counter-Respondent], but not termination
of the contract.
Today, Friday 24 November, the [Claimant / Counter-Respondent] came to the
ground for his training but the [Respondent / Counter-Claimant] did not let him
in. With this action you are breaching his contract. I strongly advice you to hold
you to the contract of the [Claimant / Counter-Respondent] with the
[Respondent / Counter-Claimant]. If you keep threatening him with the police
and not letting him in, you can leave me no other choice than to take legal steps
against the [Respondent / Counter-Claimant]…”.
9. In response thereto, on the same date i.e. 24 November 2017, the Respondent /
Counter-Claimant sent the following email:
“Yesterday [The Respondent-Counter-Claimant] terminated [the Claimant /
Counter-Respondent’s] contract because of alleged criminal activity on his part.
[The Respondent-Counter-Claimant] provided the police the appropriate
information and they will decide whether criminal charges should be brought
against the [Claimant / Counter-Respondent].
We obviously disagree whether a criminal assault is a ground for contract
termination. However, should you wish to contest the termination on behalf of
the [Claimant / Counter-Respondent], you are obviously aware of the method by
which this should be accomplished. As I explained to you, the [Claimant /
Counter-Respondent’s] contract was legally terminated as of 23 November
2017.”.
10. On the other hand, the Claimant / Counter-Respondent’s legal representative
replied to the Respondent / Counter-Claimant’s reply stating: “Like I said in my
email, we do not agree. And we will make a complain about this termination as
well.
You are saying a criminal activity. I think that’s overreacting. Since when is
misunderstanding between two players which ends with a small fight / argument
a criminal activity?
These thing happen all the time on the pitch. I do see your point of view and as
far as I’m seeing you looked for a reason to terminate the contract. We all know
that [the Claimant / Counter-Respondent] was signed because your right back
was injured. Now he is back you want to get rid of [the Claimant / CounterRespondent] and this is the reason you want to get rid of him.”.
11. On that basis, the Respondent / Counter-Claimant replied to the Claimant /
Counter-Respondent with an email on 24 November 2017. Said email reads as
follows:
“As I mentioned in my earlier letter, we made a decision and you are welcome to
challenge that. An assault and battery is a reason for termination in every
jurisdiction we know of, including the FIFA. Please have your lawyer check the
similar cases. By the way, our right back unfortunately has not yet recovered. He
needs more time. So your reasoning, which also happens to be irrelevant, is also
wrong.”.
Player A, Country B / Club C, Country D
4/15
12. On 7 December 2017, the Claimant / Counter-Respondent lodged a claim against
the Respondent / Counter-Claimant in front of FIFA for compensation for breach
of contract, requesting the following:
- To determine that the Respondent / Counter-Claimant terminated the
contract without just cause;
- The payment of EUR 118,736, plus 5% interest p.a. as from 24 November
2017, as to compensation for breach of the contract;
- To impose sporting sanctions to the Respondent / Counter-Claimant; and
- To award the Claimant / Counter-Respondent with legal costs.
13. On his claim, the Claimant / Counter-Respondent emphasized that towards the
beginning of the month of September 2017, his relationship with the teammate
worsened. In this context, according to the Claimant / Counter-Respondent, the
teammate adopted an aggressive and bossy attitude towards him by issuing
orders and showing displeasure towards him whenever the Claimant / CounterRespondent did not obey the orders from the teammate.
14. Having said that, the Claimant / Counter-Respondent sustained that when he
confronted the teammate by telling him he was only supossed to receive orders
from the head coach, the teammate allegedly replied “by resorting to racist
chants and insults at [the Claimant / Counter-Respondent], and bragged that he
was the [Respondent / Counter-Claimant’s] best player, and therefore
untouchable”.
15. In light of the above, according to the Claimant / Counter-Respondent, he
requested the Respondent / Counter-Claimant to transfer him to the reserve
team in order to avoid the teammate. Nevertheless, the Claimant / CounterRespondent stated that the Respondent / Counter-Claimant did not grant his
request and was forced to continue training with the teammate.
16. In so doing, the Claimant / Counter-Respondent referred to the alleged facts that
happened in the training session on 23 November 2017. In this respect, he
recalled the following “During the training session [the Claimant / CounterRespondent] was dispossessed off the ball by an opponent at which point [the
teammate] angrily confronted him by shouting some unpleasant unnecessary
insults hinging on [Claimant /Counter-Respondent’s] racial background.
[The Claimant / Counter-Respondent] ignores [the teammate’s] insults and while
in possession of the ball 10 or so minutes later, heard [the teammate] calling him
out for a pass. [The Claimant / Counter-Respondent], who was under pressure
from an opponent decided to pass the ball to a teammate who was better
placed. This angered [the teammate] as he inferred [the Claimant / CounterRespondent] to have defied his orders. [The teammate] run towards [the
Claimant / Counter-Respondent] and hurled further racial insults, shouting that
[the Claimant / Counter-Respondent] should return to Country E, among other
despicable words. This obviously moved [the Claimant / Counter-Respondent],
who’s instincts drove him to push [the teammate] backwards. However, [the
teammate] again came towards [the Claimant / Counter-Respondent] and
Player A, Country B / Club C, Country D
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viciously pushed him on the chest, in a manner suggesting that he was ready to
attack further. [The Claimant / Counter-Respondent] sensed danger and the
need to defend himself. In the heat of the movement, [the Claimant / CounterRespondent] instinctively punched [the teammate] on the face and the pair
wrestled before being separated by the rest of the teammates.”.
17. Furthermore, the Claimant / Counter-Respondent held that after the contract
was terminated by the Respondent / Counter-Claimant, the teammate continued
training as usual and even played for the Respondent / Counter-Claimant in the
match of 25 November 2017. In this regard, according to the Claimant / CounterRespondent, this is a further indication of the minor nature of the alleged
altercation between him and the teammate.
18. On 25 November 2017, the Claimant / Counter-Respondent sent the Respondent
/ Counter-Claimant a letter by means of which he requested the payment of
damages in the amount of currency of Country D 14,652,000 which corresponds
to the residual value of the contract, as well as the outstanding amount of
currency of Country D 1,628,000 corresponding to the outstanding salary of 23
days of November 2017 before the contract was terminated, establishing a
deadline to the Respondent / Counter-Claimant of 10 days for payment, since in
his opinion the contract was terminated without just cause.
19. Hence, the Claimant / Counter-Respondent deemed that in connection with the
general principle of law, ultima ratio, the contract was terminated without just
cause, since the termination of a contract should only be resorted as the last
consequence by the aggrieved party in case the existence of a breaching party.
In this context, the Claimant / Counter-Respondent argued that as a result of the
aforementioned altercation was his first-time offence, he first had to be warned
by the Respondent / Counter-Claimant before the latter terminated the
employment relationship. Thus, according to the Claimant / CounterRespondent, the contract could only be terminated with just cause if his conduct
persisted for a long time or he committed many breaches; and the Respondent /
Counter-Claimant had first warned him about future consequences in case he
continued breaching the contract.
20. Moreover, the Claimant / Counter-Respondent stated that “the fact that no
action was taken on [the teammate] is further indicative of the [Respondent /
Counter-Claimant’s] malicious intention to get rid of the [Claimant / CounterRespondent]”.
21. Subsequently, the Claimant / Counter-Respondent recalled art. 17 of the
Regulations on the Status and Transfer of Players and emphasized that according
to it, he is allegedly entitled to compensation after the contract was allegedly
terminated without just cause. In this respect, the Claimant / CounterRespondent requested compensation for breach of contract on the basis of:
- The remaining time of the referring contract; and
- Specificity of sport
Player A, Country B / Club C, Country D
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22. Regarding the remaining value of the contract, the Claimant / CounterRespondent requested the amount of currency of Country D 14,719,833,
corresponding to the salary as from the date the contract was terminated i.e. 23
November 2017, until June 2018.
23. In relation to the specificity of the sport, the Claimant / Counter-Respondent
argued that for the calculation of the amount he is entitled to, it shall be taken
into account that the termination took place during the protected period and
when the majority of the transfer windows were closed as well as the
circumstances that caused the termination. Having said that, the Claimant /
Counter-Respondent requested the amount of currency of Country D 22,385,000
corresponding to a complete season salary or an additional 3 months’ salary.
24. As a result of the above, the Claimant / Counter-Respondent requested the total
amount of EUR 118,736.
25. Finally, according to the Claimant / Counter-Respondent on the date the claim
was lodged, there was no other pending suit nor any proceedings pending from
another court.
26. On its reply, the Respondent / Counter-Claimant rejected the Claimant / CounterRespondent’s claim and lodged a counterclaim against him.
27. In this regard, the Respondent / Counter-Claimant rejected the Claimant /
Counter-Respondent’s argument that he was insulted for his racial background.
28. Moreover, the Respondent / Counter-Claimant referred to the altercation
between the Claimant / Counter-Respondent and the teammate, and stated that
“the attack by [the Claimant / Counter-Respondent] was an unprovoked crime.
[The Claimant / Counter-Respondent] did not push or shove [the teammate] but
head-butted him, and [the teammate] in no way precipitated the attack, nor he
respond to the attack”.
29. In line with the above, the Respondent / Counter-Claimant presented an
affidavit under oath of the teammate. Said affidavit reads as follows: “After
finishing a particular training exercise, [the Claimant / Counter-Respondent]
approached me and without any provocation head-butted my. My skin broke,
blood came, and I was injured for the next few days. That day the only
communication prior to his attack I had with [the Claimant / CounterRespondent] was a statement from me that he was moving up slowly on the
side. I told him to move faster.
I have never heard any racial expression used with regard to [the Claimant /
Counter-Respondent] or any black player at [the Respondent / CounterClaimant]. I certainly have never used such expression with regard to [the
Claimant / Counter-Respondent]”.
Player A, Country B / Club C, Country D
7/15
30. Having said that, the Respondent / Counter-Claimant held that after the
altercation, the teammate allegedly held having injuries that took 8 days to heal,
but did not require hospitalization.
31. On that basis the Respondent / Counter-Claimant sustained that “the only
legitimate question posed by this case, is whether an unprovoked, criminal
attack that could cause serious bodily harm or, in some extreme case, death,
perpetrated against one’s own teammate, is on adequate reason for a club to
performance among his fellow sportsmen impossible. The [Claimant / CounterRespondent’s] contract was terminated with immediate effect on 23 November
2017…”, as a consequence, the Respondent / Counter-Claimant deems having
terminated the contract with just cause.
32. In continuation, according to the Respondent / Counter-Claimant, after the
altercation, a criminal case against the Claimant / Counter-Respondent was
opened in Country D. In so doing, the Respondent / Counter-Claimant requested
to suspend the proceeding until the Country D court decided whether the
Claimant / Counter-Respondent committed a crime or not.
33. Having said that, the Respondent / Counter-Claimant recalled clause 9 of the
contract, in particular to paragraphs 38 and 39, and maintained that the contract
was terminated with just cause based on the contract, emphasizing that after
the alleged circumstance that cause the unilateral termination of the contract “It
must be abundantly clear that following [the Claimant / Counter-Respondent’s]
criminal behaviour, it would have been impossible to maintain a relationship
with other players, and we would have exercised a negative influence on the
working climate.”.
34. Subsequently, the Respondent / Counter-Claimant lodged a counterclaim against
the Claimant / Counter-Respondent requesting the amount of currency of
Country D 506,847 corresponding to an alleged overpaid amount to the
Claimant / Counter-Respondent.
35. In his replica, the Claimant / Counter-Respondent acknowledged the alleged
overpaid amount made by the Respondent / Counter-Claimant, and in this
regard, sustained that the amount of 1,635 EUR should be deducted from the
requested amount corresponding to compensation for breach of contract.
36. Moreover, the Claimant / Counter-Respondent rejected the response of the
Respondent / Counter-Claimant. In this context, the Claimant / CounterRespondent first stated that “[He] is at pains to envisage how any ordinary right
thinking man would [allegedly] brutally attack another without any
provocation”.
37. In particular, the Claimant / Counter-Respondent argued that the Respondent /
Counter-Claimant failed to provide medical evidence that could confirm that the
teammate was indeed seriously injured. In this respect, the Claimant / Counter-
Player A, Country B / Club C, Country D
8/15
Respondent recalled the statement on his claim by means of which he sustained
that the teammate played a few days after the alleged altercation.
38. Regarding the alleged criminal procedure under the Country D courts, the
Claimant / Counter-Respondent held that “[the document provided by the
Respondent / Counter-Claimant] is nothing other than a fabricated document
procured by [the Respondent / Counter-Claimant] in collusion with the Country D
police for the sole purpose of frustrating these proceedings.”.
39. Furthermore, the Claimant / Counter-Respondent referred to clause 9 paragraphs
38 and 39 of the contract, and sustained that “Misunderstandings and training
ground bust ups are common in all sports. It would be an abuse of power if an
employer were to terminate an employment contract on the basis of manifestly
unconscionable clause… That is why FIFA and CAS jurisprudence have laid down
clear guidelines (such as warnings, fines or suspensions) to be followed by clubs
before resorting to termination of contracts. It is only after such measures have
been applied on a player… that the player can be said to be a negative influence
or a person who cannot possibly cooperate with his colleagues”, therefore,
according to the Claimant / Counter-Respondent said clause should be
considered null and void.
40. In its duplica, the Respondent / Counter-Claimant insisted in its counterclaim as
well as its arguments and rejected all the Claimant / Counter-Respondent’s
statements.
41. In this regard, the Respondent / Counter-Claimant referred to clause 9 of the
contract and sustained that “These standard behaviour clauses are anything but
unconscionable, and the very reason why [the contract] was terminated was
because it became impossible or difficult to cooperate with his colleagues.
Finally, [the Respondent / Counter-Claimant] will like to respectfully suggest that
contrary to the alleged legal doctrine presented by [the Claimant / CounterRespondent], neither homicide nor repeated brutal attacks are required for the
rumination of an employment relationship”.
42. After being requested by FIFA, the Claimant / Counter-Respondent confirmed
that on 24 January 2018, he signed a contract with the Country F club, Club G,
valid as from 15 January 2018 until 31 December 2019, according to which he is
entitled inter alia to receive a monthly salary corresponding to the amount of
currency of Country F 45,000 payable on the 25th of each month and a sign on
fee corresponding to the amount currency of Country F 80,000 payable on 25
January 2018.
II. Cons iderations of the Dis pute Res olution Cham ber
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
Player A, Country B / Club C, Country D
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on 7 December 2017. Consequently, the 2017 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand
(cf. art. 21 of the 2017 and 2018 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 2018), 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 player of Country B and a club of Country D.
3. Furthermore, the DRC 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
2016 and 2018), and considering that the present claim was lodged on 7
December 2017, the 2016 edition of said regulations (hereinafter: Regulations) is
applicable to the matter.
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 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. First of all, the DRC acknowledged that, on 25 July 2017, the Claimant / CounterRespondent and the Respondent / Counter-Claimant concluded an employment
contract valid as from the date of the signature until 30 June 2018.
6. In this regard, the members of the Chamber duly considered the financial terms
of the contract at the basis of this dispute. In this context, the Chamber took
note that the Claimant was entitled to receive a monthly salary of currency of
Country D (currency of Country D) 2,035,000 payable by the 10th day of each
month.
7. In continuation, the members of the DRC acknowledged that on 7 December
2017 the Claimant / Counter-Respondent lodged a claim in front of FIFA, by
means of which on the one hand, he maintained that the Respondent / CounterClaimant had no just cause to terminate the employment contract on 23
November 2017 and that therefore, the Respondent / Counter-Claimant is to be
held liable for the early termination of the employment contract and payment
of, inter alia, compensation for breach of contract and legal costs.
8. Subsequently, the members of the DRC observed, that the Respondent / CounterClaimant, for its part, rejected the claim and held that it terminated the
Player A, Country B / Club C, Country D
10/15
employment relationship with just cause on 23 November 2017 on the basis of
clause 9 of the contract, in particular, paragraphs 38 and 39, after a physical
altercation between the Claimant / Counter-Respondent and a former
teammate, and lodged a counterclaim against the Claimant / CounterRespondent, requesting the payment of an alleged overpaid amount to the
Claimant / Counter-Respondent.
9. In view of the foregoing, the members of the DRC first wished to point out that
it remains uncontested that on 23 November 2017, the Respondent / CounterClaimant unilaterally terminated the contract.
10. On account of the aforementioned, considering the diverging position of the
parties with regard to the question as to which party is liable for the early
termination of the pertinent employment contract, the members of the
Chamber highlighted that the central issue in this dispute was to determine as to
whether the Respondent / Counter-Claimant terminated the employment
contract with or without just cause as well as to decide the consequences
thereof.
11. Hence, the DRC proceeded with an analysis of the circumstances surrounding the
present matter, the parties’ arguments as well as the documentation on file,
bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which
any party claiming a right on the basis of an alleged fact shall carry the burden
of proof.
12. In this regard, the Chamber turned its attention to the main arguments invoked
by both the Claimant / Counter-Respondent and the Respondent / CounterClaimant. In particular, the members of the Chamber observed that, the
Claimant / Counter-Respondent alleged that the Respondent / Counter-Claimant
had other resorts before unilaterally terminating the contract, and on the other
hand that, according to the Respondent / Counter-Claimant the physical
altercation is equivalent to a criminal behaviour, and therefore it was impossible
to maintain an employment relationship with the Claimant / CounterRespondent.
13. With those considerations in mind, the members of the Chamber considered that
main issue in the matter at stake was to determine if the reasons put forward by
the Respondent / Counter-Claimant can be considered as a just cause to
prematurely terminate the employment contract.
14. At this point, the Chamber emphasized the fact that the validity of the grounds
by means of which a contract was terminated, and if it occurs with just cause
must be determined on a case by case basis.
15. In this respect, the DRC referred to the Chamber’s well-established jurisprudence
in accordance with which only a breach or misconduct which is of certain severity
would justify the termination of a contract. In other words, only when there are
Player A, Country B / Club C, Country D
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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 only be an
ultima ratio measure.
16. On that basis, the DRC members pointed out that it is undisputed by the parties
that Respondent / Counter-Claimant did not took any other measures towards
the Claimant / Counter-Respondent (e.g., among other, the imposition of a
warning or a fine) that would have been more lenient and proportionate with
respect to his conduct, in particular to the physical altercation, in order to assure
the Claimant / Counter-Respondent’s fulfilment of his contractual duties. In this
context, the members of the Chamber did not agree with Respondent / CounterClaimant that the physical altercation made the continuation of the employment
relationship impossible.
17. On account of the above, the Chamber concluded that the Respondent /
Counter-Claimant had no just cause to unilaterally terminate the employment
contract on 23 November 2017 and, therefore, decided that the Respondent /
Counter-Claimant is to be held liable for the early termination of the
employment contract without just cause.
18. Furthermore, the DRC duly noted that, the Claimant / Counter-Respondent
acknowledged the payment of currency of Country D 506,847 and, proceeded to
amend his initial claim.
19. Bearing in mind the previous considerations, the members of the DRC went to
deal with the consequences of early termination of the employment contract
without just cause by the Respondent / Counter-Claimant.
20. First of all, the members of the Chamber emphasized that the Respondent /
Counter-Claimant had fulfilled its obligations as per employment contract up
until the date of termination of the contract.
21. Nevertheless, the Chamber decided that, taking into consideration art. 17 par. 1
of the Regulations, the Claimant / Counter-Respondent is entitled to receive
from the Respondent / Counter-Claimant compensation for breach of contract
on the basis of the relevant employment contract.
22. In this regard, 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 / Counter-Respondent under the existing contract and/or
Player A, Country B / Club C, Country D
12/15
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.
23. In application of the relevant provision, the members of the Chamber held that
it first of all had to clarify whether the pertinent employment contract contained
any clause, by means of which the parties had beforehand agreed upon a
compensation payable by the contractual parties in the event of breach of
contract. In this regard, the Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
24. In continuation, and in order to evaluate the compensation to be paid by the
Respondent / Counter-Claimant, the members of the DRC took into account the
remuneration due to the Claimant / Counter-Respondent in accordance with the
employment contract as well as the time remaining on the same contract, along
with the professional situation of the Claimant / Counter-Respondent after the
early termination occurred, as well as the payment made by the Respondent /
Counter-Claimant. In this respect, the DRC pointed out that at the time of the
termination of the employment contract on 23 November 2017, the contract
would run until 30 June 2018.
25. Consequently, taking into account the financial terms of the contract, the
members of the Chamber concluded that the remaining value of the contract as
from its early termination by the Respondent / Counter-Claimant until the
regular expiry of the contract amounts to currency of Country D 14,245,000 and
that such amount shall serve as the basis for the final determination of the
amount of compensation for breach of contract.
26. In continuation, the DRC verified as to whether the Claimant / CounterRespondent 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 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 player’s general obligation to mitigate his damages.
27. Subsequently, the members of the DRC remarked that the Claimant / CounterRespondent informed FIFA that following the early termination of the
employment contract at the basis of the present dispute, he signed a new
employment contract on 24 January 2018 with the club of Country F, Club G,
valid as from 15 January 2018 until 31 December 2019, according to which he
would be remunerated with a monthly salary corresponding to the amount of
currency of Country F 45,000 payable on the 25th of each month, and a sign on
Player A, Country B / Club C, Country D
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fee corresponding to the amount of currency of Country F 80,000 payable on 25
January 2018, for a total remuneration of currency of Country F 327,500 during
the overlapping period, which corresponds to approximately currency of Country
D 10,407,153.
28. Moreover, the members of the Chamber recalled that the Claimant / CounterRespondent acknowledged the overpaid amount corresponding to the amount
of currency of Country D 506,847, and as a result decided, as well, to deduct this
amount from the compensation for breach of contract.
29. In view of all of the above, the Chamber concluded that the Respondent /
Counter-Claimant must pay the amount of currency of Country D 3,331,000 to
the Claimant / Counter-Respondent as compensation for breach of contract
without just case, which is considered by the Chamber to be a reasonable and
justified amount as compensation.
30. In addition, taking into account the Claimant / Counter-Respondent’s request as
well as its longstanding jurisprudence, the Chamber decided that the
Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent
interest of 5% p.a. on the amount of compensation as of the date on which the
claim was lodged, i.e. 7 December 2017, until the date of effective payment.
31. With those considerations in mind, the DRC rejected the counterclaim lodged by
the Respondent / Counter-Claimant.
32. Moreover, the DRC referred to the Claimant / Counter-Respondent’s request for
additional compensation and legal costs. In this respect, the members of the DRC
established that the request of the Claimant / Counter-Respondent cannot be
granted as there is no contractual basis in this regard.
33. Finally, the members of the Chamber concluded their deliberations in the
present matter by establishing that any further claim lodged by the Claimant is
rejected.
*****
III. Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
compensation for breach of contract in the amount of currency of Country D
3,331,000, plus 5% interest p.a. as from 7 December 2017 until the date of
effective payment.
Player A, Country B / Club C, Country D
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3.
In the event that the amount plus interest due to the Claimant / CounterRespondent in accordance with the above-mentioned point 2. is not paid by
the Respondent / Counter-Claimant within the stated time limit, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee
for consideration and a formal decision.
4.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
5.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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.
6.
The counterclaim of the Respondent / Counter-Claimant is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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
CH-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:
Emilio García Silvero
Chief Legal Officer
Encl. CAS directives
Player A, Country B / Club C, Country D
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