Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 November 2011,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Takuya Yamazaki (Japan), member
Theodoros Giannikos (Greece), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the player
H,
as Claimant / Counter-Respondent 1
against the club
A,
as Respondent / Counter-Claimant
and the club
FC L,
as Counter-Respondent 2
I.
regarding an employment-related dispute between the parties
Facts of the case
1.
On 11 July 2008, the player’s agent, Mr E (hereinafter: the player’s agent), the
club, A (hereinafter: A), and the player, Mr H (hereinafter: the player), born on 22
February 1977, concluded an employment contract (hereinafter: the contract),
beginning on 1 July 2008 and terminating on 30 June 2010 (cf. Article IX of the
contract), i.e. for the duration of two years, as well as a “Football Player’s Contract
Schedule” (hereinafter: the schedule).
2.
In accordance with the schedule, the player was entitled to a signing-on fee
amounting to EUR 500,000 at the beginning of each sporting season, and to a
salary of EUR 1,200,000 to be distributed over the whole period of the 24 months
of contract. Beyond aforesaid amount, the player was, inter alia, also entitled to a
bonus (from 2,000 to 5,000 per match) for every winning match of the league
championship and cup. The player was equally entitled to six business class [air]
tickets for himself and his family.
3.
In its Article X (“Termination by the Club or the Player”) par. 3, the contract also
stipulated that “[w]hen the termination of the Contract [would] not [be] due to a
just cause or a mutual agreement between the parties concerned, the club or the
player shall be entitled to receive from the other party in breach of the contract a
compensation for all the left amount”.
4.
According to the player, he received his salary established in the contract until the
end of January 2009, but the salary due in February 2009 remained outstanding.
5.
On 23 March 2009, the player directed a correspondence to A demanding
immediate compliance with their contractual obligations, i.e. asking to
immediately pay him the salary corresponding to the month of February 2009.
6.
On 25 March 2009, A apparently replied to said notice by addressing a letter to
Mr. E, i.e. the player’s agent, (and apparently received on the same date according
to a hand-written note on the document stating “I RECEVED ON 25.03.09”, and
signed by a non-recognisable signature) clarifying, inter alia, that because of the
international world crisis, the salary payments were going to be paid slightly later
than usual, but that the outstanding amount was only secondary since it
represented less than 8.5 % of the total amount due as salary for the entire season
2008/09.
7.
In the same correspondence, A also stated to have never failed to accomplish their
contractual obligations with other players before, as well as that all the wages
established in the contract were guaranteed by the country Q [National] Olympic
Committee. Finally, A stressed out that said Committee is a governmental entity
and therefore directly connected with the country Q National Government. As a
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final note, A requested the player’s agent to properly inform the player and his
legal representative that the outstanding remuneration would be paid within the
next 60 days.
8.
On 3 May 2009, the player terminated the contract in writing with immediate
effect, asserting that he had been left without salary for over three months,
i.e. February, March and April [2009], although he had been allegedly putting his
services at the disposal of the club A and continued to train alone according to the
instructions received.
9.
In the period between 17 and 24 May 2009, the player stayed at the Hotel in
country Q as he had allegedly already “returned” the house[‘s keys] to A.
According to the player, the hotel expenses incurred amounted to 12,463.50
which he had to pay himself.
10.
On 24 May 2009, the player also paid 7,810 for the airfare Q – S.
11.
On 26 May 2009, the player received the amount of EUR 150,000 corresponding to
three months of salary from the Professional Players’ Committee of the Football
Federation Q
12.
On 24 June 2009, the player and the country S club, FC L, concluded a labour
contract stipulating a validity period from 1 July 2009 until 30 June 2011.
According to this contract, the player was entitled to a gross wage (in the Super
League) of 14,500 as well as to a monthly allowance of 500. Moreover, the player
was also entitled to receive a fielding bonus amounting to 500 for every fielding
of minimum 45 minutes with the first team in said championship.
13.
According to annex 9 of this labour contract, the player was also entitled to
further bonuses in case of victory and tie in the championship: the gross victory
bonus was of 1,000 per match, while the gross tie bonus was of 400. The allocation
key for the bonuses was as follows:
-
If the player was in the start formation: 100% of the respective amount;
-
If the player was a substitute entering during the match: 50% of the
respective amount;
-
If the player was a substitute staying on the bench during the whole match:
25% of the respective amount (cf. point 9.1 of the contract).
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14.
On 8 July 2009, the player submitted a motivated claim against A for breach of
contract.
15.
According to the player, he had allegedly on several occasions drawn A’s attention
to the delay in the payment of the salary of February 2009, without, however,
receiving any explanation for the non-compliance with the contractual terms.
Despite his fax dated 23 March 2009, the player did allegedly not receive any
reaction from A.
16.
Concerning the received amount of EUR 150,000 the player assumed that the
payment was made by the Football Federation Q. on behalf of its affiliated club,
since the Football Federation Q. was aware of A’s wrongdoing. In any event, the
player considered that the payment clearly occurred after the employment
relationship between the parties was terminated since a long time and following
allegedly many default letters that remained unanswered by A.
17.
The player also asserted that he was not paid match bonuses in the total amount
of 38,000 as follows:
18.
Date
Match
Result
Amount
30/01/2009
A vs B
4-0
4,000
07/02/2009
A vs C
3-2
4,000
12/02/2009
A vs D
3-1
4,000
16/02/2009
A vs F
3-0
4,000
21/02/2009
A vs G
1-2
-----
27/02/2009
A vs I
2-0
4,000
05/03/2009
A vs J
2-1
4,000
14/03/2009
A vs K
3-2
5,000
22/03/2009
A vs L
3-0
5,000
12/04/2009
A vs M
0-0
2,000
17/04/2009
A vs C
2-2
2,000
The player therefore requests A to pay him the amount of EUR 1,200,000 which
according to him corresponds to the remaining value of the contract, as well as
38,000 plus 5% interest as from 3 May 2009, i.e. the date of the termination of the
contract.
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19.
The player further requests A to pay him the total sum of EUR 300,000 as
supplementary compensation, corresponding to an amount equivalent to six
months’ salary, in application of Art. 337c par. 3 of the Code of Obligations
(hereinafter: CO).
20.
Moreover, the player requested A to pay for his hotel ( 12,463.50) and flight
(7,810) expenses.
21.
Finally, the player also requested to sanction A for the breach of contract in
accordance with Art. 17 par. 4 of the [FIFA] Regulations [on the Status and
Transfer of Players; hereinafter: the Regulations] for the next two registration
periods.
22.
On 17 July 2009, the Single Judge of the Players’ Status Committee decided to
authorise the Football Association S (FAS) to provisionally register the player for its
affiliated club FC L with immediate effect.
23.
In reply the player’s claim, A made the following statements:
a)
During the first half of the 2008/09 season, the player had not been selected
by A’s coach amongst the eleven players called to start their official matches.
In December 2009, the player allegedly contacted A’s director in order to
inform him about his displeasure of such situation and his intention to find
another club;
b)
In January 2009, the player contacted A’s representative personally and
communicated again his intention to leave. Moreover, the player allegedly
informed A that he had received a proposition from the country S club, FC L,
and therefore contacted A’s representative about the possibility to reach a
mutual agreement for an early termination of the contract. A refused said
offer since it had already paid a share of his salary in advance (EUR 500,000),
plus the regular amounts due in the first six months of the contract (EUR
300,000);
c)
In February 2009, FC L allegedly contacted A by phone in order to inform
them about their intention to conclude a contract with the player but
without having to pay any compensation for his definitive transfer. Once
again, A refused those conditions based upon the amount of salaries paid in
advance to the player so far;
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d)
As to the merits, A asserts that, as a general rule, only the persistent failure
to pay the salaries of a player without just cause should be considered an
unjustified breach of an employment contract by a club. However, only a few
weeks’ delay in paying said salaries does not yet justify the termination of a
contract;
e)
A also stressed that from August 2008 until January 2009 it had complied
with the payment of the remuneration without any delay. According to A,
the player breached the contract alleging that they did not comply with 12.5
% (or EUR 150,000) of the total sum due as salary for the whole season
2008/09. The amount of EUR 150,000 could not be considered in the present
matter as substantial enough to justify a premature termination of the
contract. A also considered that in January 2009 the player had already
received almost 70% (or EUR 800,000) of the total sum due as salary for the
entire season 2008/09;
f)
Finally, A asserted that even though the payment was provided to the player
over 3 months after the due date, it is evident that the late payment of the
salaries did not endanger the position and existence of the player.
24.
A also lodged a counterclaim against the player, alleging that he had unilaterally
terminated the contract without just cause, referring in particular to art. 17 par. 1
of the Regulations in conjunction with Article X, par. 3 of the contract.
25.
Taking into account that the player terminated the contract on 3 May 2009
(cf. point 9 above), A deems that it is entitled to claim as compensation for the
unilateral termination of the contract the following amounts: the salary in
advance amounting to EUR 500,000 as well as the salaries from June 2009 until
June 2010 in the amount of EUR 50,000 each, constituting a total sum of
EUR 1,200,000 as compensation.
26.
Furthermore, A highlighted the fact that, in casu, the alleged breach of contract
occurred during the so-called protected period. Therefore, the player shall also be
subject to a four-month restriction on playing in official matches.
27.
Moreover, A also referred to art. 17 par. 4 of the Regulations, stating that FC L
should be banned from registering any new players, either nationally or
internationally, for two registration periods.
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28.
A highlighted in this context that less than 25 days after having left country Q (i.e.
on 28 May 2009), the player signed a new employment contract with FC L.
29.
Subsidiary, only in the event the above is rejected, A requested the DRC to apply
Art. 337c par. 2 of the CO, considering thus the amounts received as remuneration
from FC L and provided the necessary reduction over those amounts that he had
failed to earn due to the breach of the contract, and to reject the application of
Art. 337c par. 3 of the CO, since no losses and/or damages have effectively been
demonstrated.
30.
Furthermore, A also requested the DRC to set aside the amount claimed by the
player as hotel and flight expenses since he had allegedly “returned” his house
and vehicle on 11 May 2009 at his own discretion.
31.
Moreover, A requested the DRC to dismiss the application of Art. 17, par. 4 of the
Regulations.
32.
Finally, A requested the DRC to reject the payment of 38,000 due as match
bonuses since the player neither attended, nor was not selected to participate in
any of the matches disputed by them since January 2009.
33.
In reply to A’s counter-claim, the player rejected it entirely and maintained his
position. He insisted in particular on the fact that at no time he had considered
nor intended the possible premature termination of the contract. To the contrary,
it was rather A, which after the Christmas break told him that they wanted to
terminate the contract with him. It was allegedly on their sole initiative that, on
29 January 2009, A signed and sealed a “Mutual Agreement” regarding the
termination of the contract, which they forwarded to the player for his approval
and signature. However, the latter stated that he had never wished to terminate
the employment relationship with A and therefore never accepted the proposal of
the latter. Finally, the player also asked for the payment of the incurred legal
expenses.
34.
FC L also submitted its position to the counterclaim lodged by A, by rejecting it
entirely and mainly repeating the same arguments as the player. As to the point
regarding the conclusion of the employment contract between the player latter
and them, FC L denies entirely having contacted A by phone in February 2009,
respectively from January 2009 until March 2009. According to FC L, the first
discussion between them and the player took allegedly place on 3 June 2009 at
the house of their President. In summary, FC L asserted that they did not have any
contact, neither – telephonic or other – with A, nor with the player personally
before 3 June 2009. Hence FC L stated that they did not induce the player to a
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breach of contract, since, at the time of the first discussion, the contractual
relationship with A was already terminated.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber 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 8 July 2009. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: the Procedural Rules) are applicable to the matter at
hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2010), 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 and a club, with the involvement of a
country S club FC L.
3.
Furthermore, taking into consideration that the contract at the centre of the
dispute was signed on 11 July 2008, while the present claim was lodged on 8 July
2009, 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 FIFA Regulations on the Status and Transfer of Players
(editions 2010 and 2009), the 2008 edition of the 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. The members
of the Chamber started by acknowledging that, on 11 July 2008, the player’s
agent, A and the player had concluded an employment contract which came into
force retroactively as from 1 July 2008 and was due to expire on 30 June 2010, i.e.
for the duration of two years, as well as an annex regarding the remuneration of
the player.
5.
In this regard, the members of the Chamber duly considered the financial terms of
the employment contract at the basis of this dispute, which are in casu contained
in its schedule, and, in particular, the salaries stipulated for the sporting seasons
2008/09 and 2009/10. In this respect, the Chamber took note that for this whole
period, it had been stipulated that the player was to receive a signing-on fee in
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the amount of EUR 500,000 at the beginning of each sporting season, as well as
the total salary of EUR 1,200,000 payable in 24 equal instalments of EUR 50,000.
6.
The Dispute Resolution Chamber further acknowledged that, on 8 July 2009, the
player lodged a claim for outstanding remuneration and compensation in front of
FIFA against A, asserting that he had just cause to terminate his employment
contract with the latter club A, on 3 May 2009, due to the fact that his salaries for
the months of February, March and April 2009 had remained unpaid up until the
date on which he terminated the contract.
7.
In this regard, the members of the Chamber noted that, in support of his claim,
the player stated that on 23 March 2009 he directed a correspondence to A,
demanding immediate compliance with the contractual obligations, i.e. asking to
immediately make the payment corresponding to the month of February 2009,
and that, on 3 May 2009, he terminated the contract in writing with immediate
effect, asserting that he was left without salary for more than three months, i.e.
February, March and April [2009], although he had been allegedly putting his
services at the disposal of A during that period and continued to train alone
according to the instructions received.
8.
Equally, the Chamber referred to A’s reply to the claim of the player and its
subsequent counter-claim against the latter and his new club, FC L, by means of
which they, on the one hand, alleged that the delayed salary payment was not
substantial enough to justify a premature termination of his employment contract,
and according to which they also alleged that FC L had induced the player to
breach his employment contract with A, by signing the player less than 25 days
after he had left country Q.
9.
Finally, the Chamber took note of the arguments raised by FC L in its submission in
answer to A’s counter-claim, by means of which they, inter alia, denied entirely to
having contacted A between January and March 2009, but rather insisted on the
fact that the first discussion between them and the player took place on 3 June
2009 at the house of their [FC L’s] President, and that they therefore did not
induce the player to a breach of his employment contract, since, at that very
moment, the player’s contractual relationship with A was already terminated.
10.
Having recalled the aforementioned facts, the Chamber went on to deliberate
whether, in view of the overall circumstances, the player had a just cause or not to
prematurely terminate the employment contract on 3 May 2009.
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11.
In this regard, on the one hand, the Chamber took note, once again, of the
allegations of the player, according to which he had received the salary
established in the contract until the end of January 2009, but that the salary due
in February 2009 had remained outstanding. The Chamber also remarked that the
player had sent a letter to A on 23 March 2009 demanding the immediate
payment of the outstanding monies due to him.
12.
On the other hand, the Chamber noted that, on 25 March 2009 and in reply to the
player’s default notice, A had sent a letter addressed to the player’s agent, Mr. E,
by means of which said club recognised certain outstanding liabilities towards the
player, and stating that the delay in payment was allegedly due to the
international world crisis. A also asserted that the outstanding amount due to the
player was secondary since it represented less than 8.5 % of the total amount due
as salary for the entire 2008/09 season.
13.
Furthermore, concerning the outstanding salaries for the months of February,
March and April 2009, the members of the Chamber duly noted that the amount
of EUR 150,000 corresponding to the three months of salary had been ultimately
paid to the player by the Football Association Q. on behalf of its affiliated club, A
on 26 May 2009, i.e. after the date on which the player had terminated the
employment contract in writing.
14.
Taking into account the previous considerations, the Chamber concluded that the
monthly salaries of February, March and April 2009 had been obviously paid late
by the Football Federation Q. on behalf of A, i.e. more than three months after
the last payment of salary had been made in January 2009. Furthermore, the
Chamber noted that this fact had never been contested by the A.
15.
Having established the above-mentioned, the Chamber first of all pointed out that
although the Regulations do not define when there is a “just cause” to terminate
an employment contract in the sense of art. 16 of the Regulations, the Dispute
Resolution has developed a jurisprudence, which has been also confirmed by the
Court of Arbitration for Sport (CAS) on several occasions, and which establishes
that the late payment of remuneration by an employer does in principle constitute
a “just cause” for the termination of an employment contract. Indeed, the club’s
payment obligation is his main obligation towards the player. If the payment of
the salary is repeatedly not made at the date designated in the employment
contract, this may obviously cause the player’s confidence in the proper fulfilment
of future obligations by the club to be lost. However, the Chamber was keen to
underline that the right of the player to terminate an employment contract with
just cause in a situation of late payment by the club of his salary would only be
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given if the following two conditions are met: first, that the salary which was paid
late by the club is not insubstantial or completely secondary; and second, that the
player has, prior to terminating the employment contract, issued the club a
warning, or in other words, drawn the club’s attention to the violation of the
contractual terms.
16.
Reverting to the facts of the present matter, the Chamber found that both
prerequisites for invoking a just cause to terminate the relevant employment
contract were, in casu, indeed met. In particular, the members of the Chamber
were eager to emphasise that it could not give credit to A’s statement that the
amount of outstanding remuneration due to the player was “secondary” since it
allegedly represented less than 8.5 % of the total sum due as salary for the entire
season 2008/09. In fact, a total of three monthly salaries, i.e. those of February,
March and April 2009 amounting to EUR 150,000 were outstanding at the
moment the player terminated the contract in writing; this amount cannot, in the
Chamber’s view, be considered as “secondary”. Furthermore, the Chamber
strongly emphasised that the circumstance that these salaries were paid at a later
stage by the Football Association Q on behalf of A, this is, after the termination of
the contract by the player occurred, cannot in any way repair A’s disrespect of its
contractual obligations.
17.
Furthermore, the members of the Chamber pointed out that the player had duly
put A in default by means of his letter dated 23 March 2009, thus clearly drawing
A’s attention to the fact that the latter club was acting in breach of its contractual
obligations.
18.
In addition and as a final consideration, the Chamber took into account that in
any case A had not given any valid reasons for said delay in the payment of the
player’s receivables, respectively that the reasons given, i.e. that it was
experiencing some financial difficulties linked to the global economic crisis, were
clearly not sustainable.
19.
Therefore, the Chamber considered that, in the present case, it could be
established that A violated the terms of the relevant employment contract and, in
particular, of its schedule, by not having paid on time the outstanding salaries, to
which the player was entitled to.
20.
As a consequence, the Chamber decided that A was found to be in breach of
contract, and, in particular, that, in accordance with its long-standing and wellestablished jurisprudence, this breach has reached such a level that the player,
suffering from the breach, was entitled to terminate the contract unilaterally
before its agreed term.
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21.
On account of the above, the Chamber reached the conclusion that the player had
terminated the relevant employment contract with just cause on 3 May 2009, and
that A is to be held liable for the early termination of the employment contract
with just cause by the player.
22.
Having established the legal aspects of the present termination of the
employment contract as detailed in the previous considerations, the
Dispute Resolution Chamber went on to deal with the financial consequences of
said termination.
23.
First of all, the Chamber decided that Al must, in accordance with the general
legal principle of “pacta sunt servanda”, pay any outstanding amounts under the
relevant employment contract, respectively its schedule, which might have been
due to the player until the date on which the latter terminated the employment
contract, i.e. until 3 May 2009.
24.
In this respect, the Chamber pointed out once again that the player had confirmed
having received the outstanding salaries relating to the months of February,
March and April 2009 on 26 May 2009, and that, as a consequence, these monthly
salaries should not be taken into consideration when establishing the amount of
outstanding remuneration still owed to him by A.
25.
In continuation, as regards the claimed match bonuses for the period between
30 January and 17 April 2009 in the total amount of 38,000 the Chamber took
note that, on the one hand, A had disputed the participation of the player in
those matches, while the player, subsequently, did not contest that he did not
participate in said matches.
26.
The Chamber therefore decided not to award any payment of bonuses to the
player.
27.
Furthermore, with reference to the claimed payment of the outstanding hotel
expenses in the amount of 12,463.50 and due to the fact that the employment
contract had been terminated by the player on 3 May 2009, the Chamber decided,
in accordance with its constant jurisprudence, not to take into account any
benefits relating to accommodation in calculating the outstanding monies payable
to the player in the specific matter at hand, since the expenses in question had
incurred at a moment when the player was not contractually entitled to any
accommodation anymore.
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28.
Moreover, concerning the claimed payments of outstanding flight expenses, the
Chamber acknowledged that the non-payment of these costs had not been
contested by A, and that they therefore had to be considered as accepted by the
latter. As a consequence, the Chamber, in accordance with its constant
jurisprudence and due to the fact that the employment contract provided for the
player to receive some flight tickets, decided that the payment of the flight
expenses in the total amount of 7,810 was outstanding and therefore due to the
player.
29.
In continuation and having established, as stated above, that A is to be held liable
for the early termination of the employment contract with just cause by the
player, the Chamber decided that the latter is entitled to receive from A
compensation for breach of contract.
30.
In this respect, the members of the Chamber considered that a careful reading of
the applicable provision, i.e. art. 17 par. 1 of the Regulations, provides the key to
assess the amount of compensation due by A to the player.
31.
The Chamber clarified that the criteria listed therein are, however, not exhaustive,
and that each request for compensation due to a breach of contract has to be
assessed on a case-by-case basis.
32.
According to 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 player 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.
33.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a compensation payable
by the contractual parties in the event of breach of contract. Upon careful
examination of the employment contract concluded between A and the player,
the members of the Chamber took note that Article X par. 3 provides for a
compensation “for all the left amount” in case of termination of the contract
without just cause or without mutual agreement of the parties concerned.
34.
The decision-making body duly analysed the contents of said clause and
acknowledged that the aforementioned clause clearly provides for the amount of
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compensation payable in the event of a termination of an employment contract
without just cause by either of the parties. In addition, the Chamber established
that the pertinent clause is fully reciprocal, since it grants the same rights to both
contractual parties. Moreover, the Chamber emphasised that art. 17 par. 1 of the
Regulations explicitly provides for the possible inclusion of a compensation clause
relating to breach of contract in an employment contract by the parties to said
employment contract.
35.
On account of the above, the Dispute Resolution Chamber concluded that the
clause contained in Article X par. 3 of the pertinent employment contract has to
be considered as valid and fully effective, i.e. that the amount of compensation
provided for in said article must be awarded to the player, without taking into
account any of the other criteria mentioned under art. 17 par. 1 of the
Regulations, in compliance with the latter article of the Regulations.
36.
Nevertheless, the Chamber acknowledged that said contractual clause did not
include any predetermined amount of compensation; however, it clearly provided
for a determinable amount of compensation payable by the party in breach of the
contract to the other party, which corresponds to the remaining value of the
contract.
37.
In this regard, and according to the documentation provided by the player to FIFA,
it appears that the remaining value of his employment contract with A can be
calculated as being the amount of EUR 1,200,000 relating to the player’s financial
entitlements, i.e. a signing-on fee of EUR 500,000 and salaries of EUR 50,000 x 14
months (from May 2009 until June 2010).
38.
Taking into account all of the above, the Chamber decided that A has to pay to
the player the total amount of EUR 1,200,000 plus 5% interest per annum as of
the date of the decision as compensation for breach of contract, as well as the
amount of 7,800 as outstanding flight expenses.
39.
In addition, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided not to award these claimed expenses.
40.
As a final point, the Chamber addressed the counter-claim of A and in this respect,
emphasised that it had established that the player had a just cause to terminate
the relevant employment contract due to the outstanding payments of salary at
the moment of the termination. In view of the foregoing, the Chamber deemed
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that it was unnecessary for this Chamber to assess the allegations made by A that
the player had been, prior to terminating his employment contract, in contact
with FC L to sign a new employment contract. Equally, the Chamber could not
take into account A’s accusations of inducement of breach of contract against FC
L, since it was acknowledged that the player had a just cause to terminate his
employment contract with A, on 3 May 2009; consequently, FC L was entitled to
conclude an employment contract with the player on 24 June 2009. Therefore, the
Chamber concluded that the counter-claim of A has to be rejected.
41.
The decision-making body concluded its deliberations in the present matter by
establishing that any further requests lodged by the player are rejected.
42.
In conclusion, the Dispute Resolution Chamber decided to partially accept the
player’s claim, and to reject A’s counterclaim.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent 1, H, is partially accepted.
2.
The Respondent / Counter-Claimant, Club A, has to pay to the Claimant / CounterRespondent 1, H, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 1,200,000, as well as
5% interest per annum on said amount as from the date of the decision until the
date of effective payment.
3.
The Respondent / Counter-Claimant, Club A, has to pay to the Claimant / CounterRespondent 1, H, the amount of 7,810 within 30 days as from the date of
notification of this decision. In the event that this amount is not paid within the
stated time limit, interest at the rate of 5% per annum will fall due as of expiry of
the above-mentioned time limit until the date of effective payment.
4.
In the event that the amounts due to the Claimant / Counter-Respondent 1, H, in
accordance with the above-mentioned points 2. and 3. are not paid by the
Respondent / Counter-Claimant, Club A, within the stated deadlines, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and decision.
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5.
The Claimant / Counter-Respondent 1, H, is directed to inform the Respondent /
Counter-Claimant, Club A, 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.
Any further requests filed by the Claimant / Counter-Respondent 1, H, are
rejected.
7.
The counterclaim of the Respondent / Counter-Claimant, Club A, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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:
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Jérôme Valcke
Secretary General
Encl.
CAS directives
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