Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 November 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theo Van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Theodore Giannikos (Greece), member
Mohamed Al-Saikhan (Saudi-Arabia), member
on the claim presented by the club,
Club A, country B
as Claimant / Counter-Respondent
against the player,
Player C, country D
as Respondent 1 / Counter-Claimant
and the club,
Club E, country D
as Respondent 2
and the club,
Club F, country G
as Respondent 3
regarding an employment-related
dispute between the parties
I.
Facts of the case
1.
On 23 December 2011, the player from country D, Player C (hereinafter:
Respondent 1 / Counter-Claimant or player), and the club from country B, Club
A (hereinafter: Claimant / Counter-Respondent or Club A), signed an
employment contract, valid as from 23 December 2011 until 1 June 2012.
Furthermore, on 23 May 2012, the player and Club A signed a second
employment contract (hereinafter: contract), valid as from 1 June 2012 until 1
June 2013.
2.
Moreover, on 23 December 2011, the club from country D, Club E (hereinafter:
Respondent 2 or Club E) and Club A signed an agreement over the loan of the
player to the latter, valid as from 23 December 2011 until 1 June 2012. In
addition, on 23 May 2012, Club E and Club A signed a second agreement over
the loan of the player, valid as from 1 June 2012 until 1 June 2013 (hereinafter:
loan agreement), under which Club A undertook to pay a loan compensation
to Club E in the total amount of USD 325,000 in two instalments. Both loan
agreements were also signed by the player.
3.
Article 20.2 of the loan agreement stipulates that: ``in case CLUB [Club A] fails
to pay the wages, bonus and/or any other remuneration established in the
labour agreement Club E shall at any time unilateral breach this Agreement
and the PLAYER immediately return to country D’’; and in accordance with art.
20.3 of the loan agreement: ``The PLAYER must immediately communicate
Club E all the time that CLUB [Club A] fails to pay wages, bonus and/or any
remuneration contracted in the labour agreement’’.
4.
In this respect, art. 21 of the loan agreement, entitled ``Release from Club E
side’’, stipulates, inter alia, that: ``Club E has right to cancel this contract in the
period of December 1st 2012 to December 31st 2012 under request by fax, email
or letter. If Club E request the release of this contract, Club E shall pay back to
CLUB the expenses that CLUB had with LOAN payment, PLAYER’S salary
(Include signing on fee) and air tickets’’.
5.
According to the contract, the player was entitled to receive, inter alia, for the
2012/13 season the following net amounts and benefits:
Signing on fee
USD 60,000
Twelve equal instalments of USD 20,000 each
as from 1 June 2012 until 1 June 2013
USD 240,000
A furnished two bedroom apartment for the player and his family;
Two return business air tickets country D-country B-country D for the
player, his wife and his two children;
Bonus of USD 1,000 in case of scoring a goal in official competitions.
Club A, country B / Player C, country D / Club E, country D / Club F, country G
2/17
6.
According to the loan agreement, which constitutes an integral part of the
contract, the player was entitled to receive, inter alia, for the 2012/13 season
the above mentioned amounts and benefits plus ``a driver with car always
available for him and his family’’.
7.
According to Club A, on 3 July 2012, Club E notified the club the will of the
parties, i.e. the player and Club E, to terminate the employment contract as
well as the loan agreement both signed on 23 May 2012 by mutual agreement.
In this alleged correspondence, Club E allegedly stated that the player did not
want to return to Club A due to a language barrier issue, non-satisfaction with
the coach’s training methodology and the complex political situation in
country B referring to the risk of a war. Moreover, Club E indicated that the
player had an ``offer from City X in country G’’ which would be good for his
career and that since, in the addition to the above, the club was ``under
negotiation with other foreign striker to replace’’ the player and the latter did
not ``come on time for new season from vacation’’, Club E requested the club
to agree to the termination of the mentioned contracts as well as to provide
the bank details in order for Club E to transfer the first loan payment made by
Club A to them. Club E also informed the club that it had already requested
the International Transfer Certificate (hereinafter: ITC) of the player.
8.
In response to the above mentioned correspondence, Club A alleges to have
drawn Club E’s attention to the principle of contractual stability.
9.
According to Club A, despite its warning, on 7 July 2012, the player and Club E
jointly addressed it a correspondence notifying the ``unilateral termination’’ of
the employment contract and the loan agreement, alleging that Club A failed
to pay the USD 60,000 signing-on fee plus two monthly salaries corresponding
to June and July 2012. Moreover, Club E invoked art. 20.2 of the loan
agreement. It was further indicated that the club must send the player’s ITC
back to Club E ``immediately as the TMS window closes in country D in just 3
days’’.
10.
The previous day, on 6 July 2012, Club A also contacted the club from country
G, Club F (hereinafter: Respondent 3 or Club F), regarding the apparent
publication on their official website that Club F had concluded a contract with
the player for the 2012/13 season and informed Club F that the player was
under a valid contract with Club A and that any negotiations between Club F,
the player and Club E constituted a violation of FIFA Regulations and the
player’s contract with the club.
11.
On 7 July 2012, Club F informed Club A that Club E had ``offered the player’’ to
them and that it was ``ready to deal with the club which entitled to deal’’.
12.
On account of the above, on 26 July 2012, Club A lodged a claim against the
player and Club E in front of FIFA maintaining that they acted in breach of
Club A, country B / Player C, country D / Club E, country D / Club F, country G
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contract without just cause shortly before the beginning of the country B
super league. The claim was amended later on in order to involve Club F in the
proceedings as a respondent.
13.
Therefore, Club A seeks compensation from the player and Club E in the
amount of USD 1,380,000 plus interest as follows:
USD 1,215,000 paid by Club A to replace the player during his absence:
a) USD 750,000 corresponding to the amount of the contract
between the club and the new player, Player H; and
b) USD 465,000 corresponding to the amount of the contract
between the club and the new player, Player J;
USD 165,000 corresponding to the amount paid regarding the
extension of the loan agreement (first instalment of loan
compensation).
14.
Furthermore, Club A seeks compensation in the amount of USD 620,000 as
further damages based on clauses 5 to 13 of the employment contract,
disciplinary measures and strongly requests that sporting sanctions be imposed
on the player, Club E and Club F.
15.
Moreover, Club A requests FIFA to order that Club E and Club F be deemed
jointly and severally liable for the payment of the above mentioned amounts.
16.
According to Club A, as a consequence of the breach, it had to incur high
expenses in order to find another player.
17.
Club A sustains that the first instalment of the loan fee in the amount of USD
165,000 was paid to Club E.
18.
Furthermore, Club A maintains that the signing-on fee stipulated in the
employment contract was not paid to the player on 23 May 2012, since the
player was leaving on holiday in the early morning the day after the signature
of the contract and it was agreed that the player would receive the payment
upon his return to country B, on 23 June 2012; however, he never came back.
Club A sustains that the agent of the player from country D, Agent Y, assured
the club that the reason for the player’s delay in returning from holiday was
due to passport issues.
According to Club A, the player and Club E had ``no real intention to remain
committed to the valid contract’’ and they were in fact ``looking for another
club for higher amounts’’.
19.
Club A, country B / Player C, country D / Club E, country D / Club F, country G
4/17
20.
In their reply to the claim, the player and Club E, with regard to Club A’s
statement that they breached the terms of the employment contract and the
loan agreement, sustain that these allegations are based on the supposed
announcement made in the website of Club F that the player had apparently
been transferred to the club from country G, which according to the player
and Club E is ``untrue and absurd’’ and does not demonstrate any possible
breach of contract by the player or Club E since they had not entered into any
contractual relationship with Club F. The player further highlights that no
evidence for such allegation has been submitted by Club A.
21.
Notwithstanding the above, according to the player and Club E, at the time
that Club A alleges that the player committed breach of contract, the
employment contract as well as the loan agreement had already been
``breached without just cause’’ by Club A, due to failure to pay the player’s
remuneration.
22.
According to Club E, by the end of May 2012, the player had not yet received
the relevant signing-on fee. After having being informed by the player of this
fact, in accordance with clause 20.3 of the loan agreement, Club E, instead of
immediately terminating the loan agreement, decided to first contact Club A
informing that, in line with clauses 3.3 and 20.2 of the loan agreement, it
would not start procedures for the extension of the player’s loan in the
Transfer Matching System (hereinafter: TMS) until the breach was remedied by
the club and the amount corresponding to the signing-on fee was paid. Club E
maintains that afterwards, instead of fulfilling all its duties, Club A only paid
Club E the first instalment of the transfer fee, failing to pay the player’s
remuneration and signing-on fee. Club E had thus no option but to terminate
the loan agreement and requested the return of the player’s ITC.
23.
Moreover, the player and Club E sustain that the player had not resumed his
activities with Club A on 23 June 2012 due to the club’s fault as, indeed, he
had a few problems with the issuance of his new passport; however, the player
stressed that Club A failed to issue the relevant air tickets for the player and
his family, as provided for in the loan agreement and the employment
contract. Furthermore, the player asserts that the formal termination of the
loan agreement and the employment contract took place on 7 July 2012, after
a few attempts to solve the matter amicably.
24.
Hence, according to the player and Club E, at the time that the club alleges
that the player committed a breach of contract, the employment contract as
well as the loan agreement had already been breached without just cause by
the club, due to failure to pay one third of the player’s entire remuneration,
i.e. the signing-on fee plus the salaries for June and July 2012, which fell due
on 23 May, 1 June and 1 July 2012, respectively. In this respect, Club E sustains
Club A, country B / Player C, country D / Club E, country D / Club F, country G
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that the payment of the player’s remuneration was a condition sine qua non
for the continuity of the loan agreement in accordance with its clause 20.2.
25.
In addition, Club E sustains that despite the return of the player to its squad,
no inducement to a possible breach of the contract can be attributed to Club E
as, after the termination or expiration of the employment contract signed on
the occasion of the player’s loan, the player would have re-joined Club E.
26.
With regard to Club A’s allegation that the player’s agent, Agent Y, had
authorised it to pay the player’s remuneration only after his scheduled return
from vacation, i.e. on 23 June 2012, the player as well as Club E sustain that
this ``shall not speak against’’ the player’s rights because: a) Club A failed to
provide any written evidence to support its allegation; b) it would be
contradictory to grant such authorisation the very same day on which the
employment contract was signed; c) it would be more reasonable to amend
the employment contract and change the date on which the player’s signingon fee and first salary were to be paid; d) the agent had neither powers nor
authorisation to give such consent on behalf of the player.
27.
As to the amounts claimed by Club A, the player and Club E sustain the
following:
Regarding the investment allegedly made by the club to replace the
player, the calculation suggested by Club A is disproportional, as it
seems unreasonable and unjustifiable to hire two players with higher
salaries to replace just one. Moreover, the two mentioned players,
unlike the Respondent, are in the national ``A’’ team in their respective
countries, i.e. Country K and country B. In addition, the remuneration
of the two players together is equivalent to more than four times that
of the player’s remuneration under the employment contract.
As to the first instalment of the loan fee apparently paid to Club E, the
player sustains that he shall not bear any responsibility. Club E, for its
part, maintains that it complied with all its obligations under the loan
agreement and that, due to the club’s breaches of contract, it shall be
entitled to receive the entire transfer fee agreed as compensation.
As to the damages claimed in the amount of USD 620,000, which
according to the player and Club E is more than two times higher than
the player’s remuneration under the employment contract, both
sustain that the club failed to demonstrate that the player and Club E
entered into any contracts with other clubs.
28.
In view of the above, the player and Club E request FIFA that the claim lodged
by Club A against them be fully rejected and they request that the club bears
the legal costs related to the present proceedings.
Club A, country B / Player C, country D / Club E, country D / Club F, country G
6/17
29.
On 11 September 2012, the player lodged a counterclaim against Club A based
on the alleged unjustified breach of employment contract by the latter.
30.
The player sustains that the club failed to pay the signing-on fee as well as the
salaries corresponding to June and July 2012, totalling USD 100,000. Therefore,
the player asks that the club be considered liable of breaching the
employment contract signed on 23 May 2012 and be ordered to pay
compensation as follows:
31.
Signing-on fee
Monthly salaries corresponding to June and July 2012 as outstanding
remuneration
USD 40,000
Remuneration as from August 2012 until June 2013
USD 60,000
USD 200,000
Furthermore, the player requests that the club be ordered to pay fringe
benefits as stipulated in the contract, which shall be calculated by the DRC ex
aequo et bono. The following estimates, totalling USD 114,000, were proposed
by the player:
Furnished two-bedroom apartment
(USD 3,500 x 12 months)
USD 42,000
A car and driver for the player and his family
(USD 2,000 x 12 months)
USD 24,000
Eight round-trip business class tickets country D-country B
(USD 6,000 x 8 tickets - for the player,
USD 48,000
his wife and two children)
32.
Moreover, the player requests that the club be ordered to pay damages in the
amount of USD 150,000, equivalent to six months of remuneration as
stipulated in the employment contract.
33.
The player also requests to be awarded 5% interest p.a. over the total amount
due by the club accrued as ``from the date of the breach of the contract (or
from the original date of maturation, as the case may be)’’ as well as legal and
procedural cost and that the club be banned from registering any new players,
either nationally or internationally, for two registration periods.
34.
In response to the counterclaim lodged by the player, Club A maintains that
the player and Club E did not act in good faith. Furthermore, Club A insists
Club A, country B / Player C, country D / Club E, country D / Club F, country G
7/17
that the player went to country D on 23 May 2012, the day on which the
parties signed the employment contract, supposedly for a period of 21 days,
the purpose of the trip being the holiday between the end of the league and
the starting of the new season on 7 July 2012. For this reason, he accepted to
receive, at his return to country B, the sum corresponding to the signing-on
fee, i.e. USD 60,000. Moreover, the club submitted a copy of an electronic air
ticket issued on 20 May 2012, in the name of the player, for him to leave
country B on 24 May 2012 and return on 16 June 2012.
35.
With regard to the payment due to Club E, i.e. USD 165,000, the club sustains
that the amount was paid on 27 May 2012 to the bank account indicated by
Club E.
36.
Furthermore, the club asserts that during the first contract all the payments
were made in cash and against receipts and that the player did not introduce
any bank account for the regular contractual payments. In addition, the club
states that it did not have ``intention and motivation to violate the contract as
indeed fulfilled all its obligations under the first contract and paid 165us dollar
for the second contract to the Club E club immediately’’.
37.
Finally, the club insists on its claim and requests that the counterclaim lodged
by the player be rejected in its entirety.
38.
According to the new employment contract with Club E, to which the player
returned, valid as of 1 July 2012 until 1 October 2015, the player was entitled
to receive 2,000 per month.
39.
On 7 September 2012, the Single Judge of the Players’ Status Committee
authorised the Football Federation of country D to provisionally register the
player with Club E.
40.
Furthermore, on 9 September 2012, Club E and Club F signed an agreement
over the loan of the player to the latter as from 9 September 2012 until 30
June 2013, under which Club F undertook to pay loan compensation to Club E
in the total amount of USD 500,000. Furthermore, the player was entitled to
receive fringe benefits and the total amount of USD 400,000 net as follows:
41.
Signing-on fee
Twelve equal monthly instalments of USD 26,666
each as from September 2012 until 30 June 2013
USD 80,000
USD 320,000
According to the employment contract with his new club, Club F, valid as of 9
September 2012 until 30 June 2013, the player was entitled to several bonuses
as well as to the same remuneration and fringe benefits stipulated in the loan
agreement, dated 9 September 2012.
Club A, country B / Player C, country D / Club E, country D / Club F, country G
8/17
42.
According to Club F, on 6 July 2012, it received a letter from Club A informing
Club F that the player was under a current and valid contract with Club A, the
contents of which were immediately communicated to Club E. Club F sustains
that Club E responded that the contract between the player and the club was
terminated and emphasized that the player’s ITC would be sent via the
Transfer Matching System (TMS). Therefore, on 9 September 2012, ``after
concluding the negotiation between Club E and Club F’’, the player and Club F
signed a loan transfer agreement valid until 30 June 2013.
43.
According to Club F, the player’s ITC was requested via TMS and received on 13
September 2012 ``without any problems and obstacles by any party’’ and
deems that it acted in accordance with the procedures. Club F added that
``according to the current rules and regulations of the players transfers, if any
breach found or just causes that prevent the transfer of a player then the TMS
will not allow the ITC of the player to be issued and sent to the requesting
association’’.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 26
July 2012. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008;
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 player from country D and an club from
country G.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2014), and considering that the present claim was lodged on 26
July 2012, the 2010 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
Club A, country B / Player C, country D / Club E, country D / Club F, country G
9/17
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. The
Chamber, however, 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, the members of the Chamber acknowledged that on 23 December 2011,
the Claimant / Counter-Respondent and the Respondent 1 / Counter-Claimant
had concluded an employment contract valid as from 23 December 2011 until
1 June 2012 and that, on 23 December 2011, the Claimant / CounterRespondent signed an agreement with the Respondent 1 / Counter-Claimant
and the Respondent 2 for the loan of the Respondent 2 valid as from until 23
December 2011 until 1 June 2012.
6.
In addition, the members of the Chamber acknowledged that on 23 May 2012,
the Claimant / Counter-Respondent and the Respondent 1 / Counter-Claimant
had concluded an employment contract valid as from 1 June 2012 until 1 June
2013 and that, on 23 May 2012, the Claimant / Counter-Respondent, the
Respondent 1 / Counter-Claimant and the Respondent 2 signed an agreement
for the loan of the player to the Respondent 2 as from 1 June 2012 until 1 June
2013.
7.
The Chamber further acknowledged that the agreement for the loan of the
Respondent 1 / Counter-Claimant contained a clause which provides “in case
CLUB [Club A] fails to pay the wages, bonus and/or Any other remuneration
established in the labour agreement Club E shall at any time unilateral breach
this Agreement and the PLAYER immediately return to country D” (cf. point I.3
above).
8.
In continuation, the members of the Chamber took into account that on 7 July
2012, the Respondent 1 / Counter-Claimant and the Respondent 2 notified the
Claimant / Counter-Respondent of the termination of the contract and the
loan agreement, inter alia, on the basis of the aforementioned clause 20.2 of
the loan agreement, stating that “they [Club A] didn’t do any payment until
now”. The Claimant / Counter-Respondent, for its part, submits, inter alia, that
the Respondent 1 / Counter-Claimant and Respondent 2 terminated the
employment contract and the loan agreement without just cause.
9.
In this respect, the Chamber took note that according to the Respondent 1 /
Counter-Claimant, at the time of the termination of the contract and the loan
Club A, country B / Player C, country D / Club E, country D / Club F, country G
10/17
agreement on 7 July 2012, the total amount of USD 100,000 was yet to be paid
by the Claimant / Counter-Respondent to the Respondent 1 / CounterClaimant. Consequently, according to the Respondent 1 / Counter-Claimant
and the Respondent 2 (hereinafter together referred to as: the Respondents),
the Claimant / Counter-Respondent had been in breach of contract at the time
of the contract termination. In this respect, the Respondents invoke art. 20.2 of
the loan agreement.
10.
The Chamber highlighted that the underlying issue in this dispute, considering
the conflicting positions of the parties, was to determine whether the
employment contract had been unilaterally terminated with or without just
cause and which party was responsible for the early termination of the
contractual relationship in question. The Chamber also underlined that,
subsequently, if it were found that the employment contract was terminated
without just cause, it would be necessary to determine the consequences for
the party that was responsible for the early termination of the contractual
relationship.
11.
The DRC then turned its attention to the arguments of the Claimant / CounterRespondent and acknowledged that according to the latter the sign-on fee
stipulated in the employment contract had remained unpaid solely because
the player’s agent had agreed with the Claimant / Counter-Respondent that
said sign-on fee was to be paid upon the Respondent 1 / Counter-Claimant’s
return to the club. The Respondent 1 / Counter-Claimant, for his part, has
refuted that he had agreed to a delayed payment of the sign-on fee in
general, and in particular, that he had empowered the agent to do so on his
behalf.
12.
In continuation, the DRC recalled that according to the legal principle of the
burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party
claiming a right on the basis of an alleged fact shall carry the burden of proof.
13.
In view of the above, the DRC concluded that the Claimant / CounterRespondent shall carry the burden of proof in connection with the allegations
that the Respondent 1 / Counter-Claimant’s agent, acting as the player’s legal
representative, authorised for the delayed payment of the sign-on fee until
the return of the Respondent 1 / Counter-Claimant.
14.
The Chamber noted that the Claimant / Counter-Respondent did not
substantiate its allegations, as it did not present any evidence in respect of the
Club A, country B / Player C, country D / Club E, country D / Club F, country G
11/17
alleged authorisation by the player or player’s agent to delay the payment of
the sign-on fee.
15.
As a consequence of the aforementioned considerations and taking into
account the documentation presented by the parties to the dispute, the
Chamber established that the sign-on fee had fallen due and remained
outstanding at the time of the termination of the contract by the Respondent
1 / Counter-Claimant.
16.
Furthermore, the members of the Chamber observed that the Claimant /
Counter-Respondent had not contested or given any reasons for the fact that
the salary of June 2012 had not been paid, in addition to having failed to
present any documentary evidence demonstrating that, in fact, the salary of
June 2012 had been paid.
17.
As regards the salary for July 2012, the members of the Chamber highlighted
that in the absence of clearly specified due dates of the monthly salary
payments, it has to be assumed that salary payments fall due at the end of the
month in which the related services are rendered.
18.
Subsequently, the Chamber noted that it has remained undisputed that the
Respondent 1 / Counter-Claimant had not returned to the Claimant / CounterRespondent on 23 June 2012 as was requested because of problems with his
passport, which were subsequently acknowledged by the Claimant / CounterRespondent on 29 June 2012, with the latter requesting that the Respondent 1
/ Counter-Claimant should return as soon as the problems were resolved.
19.
In continuation, as a consequence of the aforementioned considerations and
taking into account the documentation presented by the parties to the
dispute, the Chamber established that the salary for the month of June 2012 as
well as the sign-on fee, i.e. a total of USD 80,000, had fallen due and remained
outstanding at the time of termination of the contract by the Respondent 1 /
Counter-Claimant on 7 July 2012. Consequently, the Chamber concurred that
the Claimant / Counter-Respondent had neglected its financial contractual
obligations toward the player, triggering the application of clause 20.2 of the
loan agreement.
20.
On account of all of the above, the Chamber decided that the Respondent 1 /
Counter-Claimant was entitled to terminate the contract on 7 July 2012.
21.
As a consequence, the Chamber decided to reject the claim of the Claimant /
Counter-Respondent.
Club A, country B / Player C, country D / Club E, country D / Club F, country G
12/17
22.
Furthermore, and in accordance with the general principle of pacta sunt
servanda, the Chamber decided that the Claimant / Counter-Respondent is
liable to pay to the Respondent 1 / Counter-Claimant the amounts which were
outstanding under the terms of the contract at the moment of termination.
23.
The Chamber then first turned its attention to the sign-on fee of USD 60,000
due to be paid upon signature since it was not otherwise specified and
applicable to the entirety of the 2012/2013 season. Therefore, the members of
the Chamber decided to award the sign-on fee to the Respondent 1 / CounterClaimant as outstanding remuneration on a pro-rata temporis basis, i.e. as
from the start of the employment contract until its termination. Consequently,
the Chamber decided that the Respondent 1 / Counter-Claimant is entitled to
receive 1/12th of the amount of USD 60,000, i.e. USD 5,000 as the outstanding
portion of the sign-on fee.
24.
On account of the above, the Chamber decided that the Claimant / CounterRespondent is liable to pay to the Respondent 1 / Counter-Claimant the
amount of USD 25,000, i.e. USD 5,000 relating to the signing-on fee and USD
20,000 relating to the monthly salary of June 2012.
25.
In addition, taking into consideration the Respondent 1 / Counter-Claimant’s
request as well as the constant practice of the Dispute Resolution Chamber in
this regard, the members of the Chamber decided to award the Respondent 1 /
Counter-Claimant interest at the rate of 5% p.a. on the outstanding amount of
USD 25,000 as from 11 September 2012 until the date of effective payment.
26.
Having established that the Claimant / Counter-Respondent is to be held liable
for the early termination of the contract with just cause by the Respondent 1 /
Counter-Claimant, the Chamber focussed its attention on the consequences of
such termination. Taking into consideration art. 17 par. 1 of the Regulations,
the Chamber decided that the Respondent 1 / Counter-Claimant would, in
principle, be entitled to receive from the Claimant / Counter-Respondent
compensation for breach of contract.
27.
Subsequently, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the matter at hand. In
doing so, the members of the Chamber first 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 1 /
Counter-Claimant under the existing contract and/or the new contract, the
Club A, country B / Player C, country D / Club E, country D / Club F, country G
13/17
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.
28.
In application of the relevant provision, the Chamber held that it first had to
clarify whether the pertinent employment contract contains a 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 Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
29.
In consideration of the foregoing, the Chamber proceeded with the calculation
of the monies payable to the player under the terms of the employment
contract as of its termination until 1 June 2013 and concluded that the
Respondent 1 / Counter-Claimant would have received total remuneration of
USD 275,000 (i.e. USD 55,000 relating to the signing-on fee plus 11 monthly
instalments of USD 20,000) had the contract been executed until its expiry
date.
30.
In continuation, the Chamber verified as to whether the Respondent 1 /
Counter-Claimant had signed an employment contract with another club
during the relevant period of time, by means of which he would have been
enabled 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.
31.
Indeed, on 1 July 2012, the Respondent 1 / Counter-Claimant signed another
employment contract with the Respondent 2 valid until 1 October 2015,
providing for monthly remuneration of 2,000. In addition, the player was
loaned from the Respondent 2 to the Respondent 3 as from 9 September 2012
until 30 June 2013, and was entitled to receive from the Respondent 3 a total
amount of USD 400,000 during said period of time.
32.
In accordance with the constant practice of the Dispute Resolution Chamber
and the general obligation of the player to mitigate his damages, such
remuneration under the new employment contract shall be taken into account
in the calculation of the amount of compensation for breach of contract.
33.
Consequently, on account of the aforementioned considerations and the
specificities of the case at hand, the Dispute Resolution Chamber decided that
Club A, country B / Player C, country D / Club E, country D / Club F, country G
14/17
even though the Claimant / Counter-Respondent is considered liable for the
breach of the relevant employment contract, the Respondent 1 / CounterClaimant did not suffer any financial loss from the violation of the contractual
obligations by the Claimant / Counter-Respondent and the Chamber,
therefore, decided that there is no amount that should be awarded to the
Respondent 1 / Counter-Claimant as compensation for breach of contract in
the matter at hand.
34.
In addition, with regards to the claimed legal expenses, the Chamber referred
to art. 18 par. 4 of the Procedural Rules as well as its long-standing and wellestablished jurisprudence, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently the Chamber decided to reject the
Respondent 1 / Counter-Claimant’s request relating to legal expenses.
35.
Finally, the members of the DRC concluded their deliberation in the present
matter by establishing that any further claim lodged by the Claimant /
Counter-Respondent is rejected.
*****
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Club A, is rejected.
2.
The claim of the Respondent 1 / Counter-Claimant, Player C, is partially
accepted.
3.
The Claimant / Counter-Respondent has to pay to the Respondent 1 / CounterClaimant outstanding remuneration in the amount of USD 25,000, within 30
days as from the date of notification of this decision plus 5% interest p.a. as
from 11 September 2012 until the date of effective payment.
4.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
Club A, country B / Player C, country D / Club E, country D / Club F, country G
15/17
5.
Any further claim lodged by the Respondent 1 / Counter-Claimant is rejected.
6.
The Respondent 1 / Counter-Claimant is directed to inform the Claimant /
Counter-Respondent 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 A, country B / Player C, country D / Club E, country D / Club F, country G
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