Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 November 2014,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Johan van Gaalen (South Africa), member
on the matter between the player,
Player L, from country P
as Claimant/Counter-Respondent
and the club,
Club V, from country R
as Respondent/Counter-Claimant
and the club,
Club F, from country P
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 19 February 2008, Player L, from country P (hereinafter: the Claimant/CounterRespondent), and Club V, from country R (hereinafter: the Respondent/CounterClaimant), signed an employment contract (hereinafter: the contract) valid as from 22
February 2008 until 31 December 2010.
2.
Articles 16.1, 16.2 and 16.3 of the contract stipulate, respectively, that “The applicable
law is country R Law”, “The present agreement will be considered as signed in country
R and all disputes, controversies, misunderstandings deriving from or in connection to
the present agreement will be governed, interpreted, understood and solved
according to the country R law in force, as well as to the sports statutes and
regulations” and “The contractual liability, the establishment of damages and
penalties are regulated by the Civil Law, the sports Statutes and Regulations, as well as
by the appendices to the present agreement”.
3.
Furthermore, according to art. 17.2 of the contract, “The parties will make, in good
faith, all efforts in order to solve amiably any dispute, controversy or
misunderstanding arising from or in connection with the present agreement. If this is
not possible, the dispute will be forwarded in order to be solved only to the sports
jurisdiction courts of country R Football Federation or Professional Football League”.
4.
Subsequently, the parties signed an undated “annex to the contract” (hereinafter: the
annex), by means of which the validity of the contract was extended for the period of
15 December 2010 until 30 June 2013.
5.
According to art. 1 of the annex, the Respondent/Counter-Claimant undertakes to
provide the Claimant/Counter-Respondent with:
- EUR 147,600 net for the period of “15 December 2010 until 30 June 2012”, payable
in 12 monthly instalments of EUR 12,300, at the latest on the 25th day of each month;
- EUR 147,600 net for the period of “1 July 2012 until 30 June 2013”, payable in 12
monthly instalments of EUR 12,300, at the latest on the 25th day of each month.
6.
Furthermore, art. 3 of the annex establishes that “If the player is injured during
training, official or friendly matches, he will have all rights and obligations arising
from this contract, according to legislation in force”.
7.
On 7 August 2012, the Claimant/Counter-Respondent unilaterally terminated the
employment contract with the Respondent/Counter-Claimant, after having sent it
three warnings on 18 July 2012, 27 July 2012 and 2 August 2012, based on the alleged
existence of outstanding remuneration towards him, in the total amount of EUR
86,100, corresponding to the months of January to July 2012, inter alia.
Player L, from country P / Club V, form country R /
Club F, from country P
2/14
8.
On 12 October 2012, the Claimant/Counter-Respondent lodged a claim in front of FIFA
against the Respondent/Counter-Claimant for breach of contract, requesting the
payment of the total amount of EUR 234,231, as follows:
- EUR 86,100 corresponding to outstanding salaries for January to July 2012 (7 x EUR
12,300), plus interests of 5% as from each due date;
- Currency of country R 2,428 or EUR 531 as reimbursement of costs in connection with
the Claimant/Counter-Respondent’s injury (cf. point I.10. below);
- EUR 147,600 as compensation for breach of contract corresponding to the residual
amount of the contract (12 x EUR 12,300), plus interest of 5% p.a. until full payment;
- attorney fees.
9.
In his arguments, the Claimant/Counter-Respondent claims to have received the
Respondent/Counter-Claimant’s letters dated 21 July 2012 and 1 August 2012, in reply
to his reminders of 18 July 2012, 27 July 2012 and 2 August 2012 (cf. point I.7. above).
While he requested the payment of his outstanding remuneration as well as
information on his training schedule, the Respondent/Counter-Claimant accused him
of not complying with the recovery program assigned to him by the club’s doctor,
having therefore violated the club’s internal regulations.
10.
The Claimant/Counter-Respondent rejects the Respondent/Counter-Claimant’s
accusations and claims that he has followed all instructions of the
Respondent/Counter-Claimant in relation to his injury. In this regard, he provides a
copy of a “medical letter” dated 7 August 2012, issued by the Arcadia hospital,
according to which “the player consulted in our services on 05/07/2012” and of an
invoice dated 5 July 2012, issued by the same hospital, detailing the Claimant/CounterRespondent’s debts for his treatment in the amount of currency of country R 574. In
addition, the Claimant/Counter-Respondent points out that he bore all the costs
related to his injury.
11.
Not having received the payment of his allegedly outstanding salaries neither
information on his training schedule, the Claimant/Counter-Respondent terminated
the contract on 7 August 2012 (cf. point I.7. above).
12.
In its reply, the Respondent/Counter-Claimant disputed the jurisdiction of the FIFA
Dispute Resolution Chamber in favour of the National Dispute Resolution Chamber of
the country R Football Federation or of the Dispute Resolution Chamber of the
country R Professional Football League, referring to clauses 16.1, 16.2, 16.3 and 17.2 of
the employment contract (cf. points I.2. and I.3. above).
13.
The Respondent/Counter-Claimant provided FIFA with a partial copy of the
“Regulation on the Status and Transfer of Football Players” (edition 2011; hereinafter:
the country R Football Federation Regulations) and a partial copy of the “country R
Football Federation Statute” (edition not specified; hereinafter: the country R Football
Federation Statute).
Player L, from country P / Club V, form country R /
Club F, from country P
3/14
14.
As to the substance of the case, the Respondent/Counter-Claimant maintains that
before the end of the 2011/2012 season, the Claimant/Counter-Respondent suffered
an injury during a training camp and was, therefore, assigned medical treatment by
the club’s doctor. As per the Respondent/Counter-Claimant, after the recovery sessions
in the hospital, the Claimant/Counter-Respondent was supposed to follow an
individual training schedule from 14 to 21 July 2012, in order to be readmitted to the
main team. The Respondent/Counter-Claimant claims that, according to the report of
the team’s physical coach dated 20 July 2012 the Claimant/Counter-Respondent failed
to follow such schedule.
15.
In spite of the reminder allegedly sent by the Respondent/Counter-Claimant on 1
August 2012 requesting his return, the Claimant/Counter-Respondent failed to present
himself. Thus, the Respondent/Counter-Claimant deems that he breached the contract
without just cause on 14 July 2012.
16.
The Respondent/Counter-Claimant also claims that it had paid to the
Claimant/Counter-Respondent the total amount of EUR 162,143.14 by 9 May 2012, in
addition to all other amounts due for the first contractual period.
17.
The Respondent/Counter-Claimant, however, pointed out that its administrative board
had imposed on him a disciplinary sanction on 27 April 2012, for an unspecified breach
committed in the first contractual period. This sanction was ratified by the country R
Football Federation Disciplinary Commission on 11 July 2012, and consequently the
Claimant/Counter-Respondent’s annual remuneration for the 2011/2012 season was
reduced by 25%. Consequently, the Respondent/Counter-Claimant concluded that the
amount of EUR 39,143.14 was paid in excess to the Claimant/Counter-Respondent.
18.
Consequently, on 23 November 2012, the Respondent/Counter-Claimant lodged a
counterclaim against the Claimant/Counter-Respondent, requesting the payment of
the following amounts:
- EUR 39,143.14 as the reimbursement of the amount paid in excess to him;
- unspecified compensation for breach of contract, corresponding to “25% of
contractual rights effectively paid until the termination”;
- EUR 80,000 corresponding to the transfer fee paid by the Respondent/CounterClaimant for the Claimant/Counter-Respondent.
19.
In his reply, the Claimant/Counter-Respondent first of all insisted on the competence
of the FIFA DRC over the present case, since the “NDRC of country R does not respect
the principle of equal representation of players and clubs”.
20.
In addition, the Claimant/Counter-Respondent rejected the Respondent/CounterClaimant’s counterclaim and insisted that his salaries for January to June 2012 remain
outstanding. Furthermore, the Claimant/Counter-Respondent stated that he had never
Player L, from country P / Club V, form country R /
Club F, from country P
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before been informed about the existence of any pending procedure regarding a fine
in the amount of 25% of his annual remuneration and points out the fact the
Respondent/Counter-Claimant only provided a copy of the ratification of an alleged
decision of the club in this regard and no evidence of an alleged contractual breach on
his part.
21.
As to the Respondent/Counter-Claimant’s accusations that he did not comply with the
recovery treatment assigned to him, the Claimant/Counter-Respondent points out that
all documentation provided by the Respondent/Counter-Claimant in this regard are
documents issued by the club’s employees and, therefore, cannot be taken into
account. The Claimant/Counter-Respondent claims that not only he had to bear the
costs of his own treatment but also that as from 16 July 2012 he was every day present
at the club’s training camp, without a training schedule and not able to contact the
club’s directors in this regard.
22.
Finally, the Claimant/Counter-Respondent points out that the reminder dated 1
August 2012 mentioned by the Respondent/Counter-Claimant, regarding his alleged
absence, was sent almost 2 months after the Claimant/Counter-Respondent had
finished his treatment in the hospital, showing that the Respondent/Counter-Claimant
was not interested in his services.
23.
In its final position on the claim, the Respondent/Counter-Claimant maintains its
previous argumentation and provides copies of 2 undated documents allegedly issued
by the Respondent/Counter-Claimant, according to which the Claimant/CounterRespondent was summoned to “be heard in connection with [his] misbehaviour” on 24
April 2012 and, subsequently, informing him of the penalty imposed on him of 25% of
his annual remuneration.
24.
In his final position on the Respondent/Counter-Claimant’s counterclaim, the
Claimant/Counter-Respondent maintains his previous argumentation and denies
having ever received the aforementioned documents provided by the
Respondent/Counter-Claimant (cf. point I.23. above) and claims that such decision
cannot be taken into account, as it was issued in violation of his right of defence.
25.
In its comments, Club F (hereinafter: the Intervening Party) fully endorses the
allegations of the Claimant/Counter-Respondent.
26.
On 5 September 2012, the Claimant/Counter-Respondent signed a new employment
contract with the Intervening Party, valid as from the date of signature until 30 June
2013, according to which he was entitled to a monthly salary of EUR 740.
Player L, from country P / Club V, form country R /
Club F, from country P
5/14
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect,
the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 12 October 2012.
Therefore, the Chamber concluded that the edition 2008 of the Procedural Rules was
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 and 2 in combination with
art. 22 b) of the Regulations on the Status and Transfer of Players (editions 2010, 2012
and 2014; hereinafter: the Regulations), the Dispute Resolution Chamber shall
adjudicate on employment-related disputes between a club and a player, with an
international dimension.
3.
Having said that, the DRC stated that it would, in principle, be the competent body to
decide on the present litigation involving a country P player and a country R club
regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent/Counter-Claimant
contested the competence of FIFA’s Dispute Resolution Chamber to deal with the
present case, stating that any dispute arisen between the parties should be submitted
to the deciding bodies of the country R Football Federation and of the country R
Professional Football League, on the basis of art. 16.1, 16.2, 16.3 and 17.2 of the
contract (cf. points I.2. and I.3. above).
5.
The Chamber equally noted that the Claimant/Counter-Respondent rejected such
position and insisted on the fact that FIFA had jurisdiction to deal with the present
matter, since the deciding bodies of the country R Football Federation and the country
R Professional Football Federation allegedly do not respect the principle of equal
representation of players and clubs.
6.
Taking into account the above, the Chamber emphasised that, in accordance with art.
22 lit. b) of the Regulations, it is competent to deal with a matter such as the one at
hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs, has been
established at national level within the framework of the association and/or a
collective bargaining agreement. With regard to the standards to be imposed on an
independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred
to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of
the Chamber further referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January
2008.
Player L, from country P / Club V, form country R /
Club F, from country P
6/14
7.
In relation to the above, the Chamber also deemed it vital to outline that one of the
basic conditions that needs to be met in order to establish that another organ than
the DRC is competent to settle an employment-related dispute between a club and a
player of an international dimension is that the jurisdiction of the relevant national
arbitration tribunal or national court derives from a clear reference in the employment
contract.
8.
Therefore, while analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse
whether the employment contract and the annex at the basis of the present dispute
actually contained a jurisdiction clause.
9.
Having said this, the members of the Chamber turned their attention to art. 16.1, 16.2,
16.3 and 17.2 of the contract, mentioned by the Respondent/Counter-Claimant as the
basis to reject the DRC’s competence over the present case.
10.
In this context, the Chamber first focused its attention on art. 16.1, 16.2 and 16.3 of
the contract and, after carefully analysing their content, it concluded that such clauses
do not constitute arbitration clauses.
11.
Having said that, the members went on to analyse the content of art. 17.2 of the
contract, equally mentioned by the Respondent/Counter-Claimant. In this respect, the
members of the DRC were of the opinion that art. 17.2 of the employment contract
does not make clear reference to one specific national dispute resolution chamber in
the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore, the members
of the Chamber deem that said clause can by no means be considered as a clear
arbitration clause in favour of either of the national deciding bodies, i.e. of the
country R Football Federation or the country R Professional Football League, and,
therefore, cannot be applicable.
12.
In addition, the member of the Chamber noted that the annex to the contract (cf.
points I.5. and I.6. above), upon which the Claimant/Counter-Respondent bases his
financial claims, does not contain any jurisdiction clause.
13.
Having established that the first criteria for the recognition of the competence of a
national decision-making body is not fulfilled in the present matter, the Chamber
deemed unnecessary to examine any further points which would need to be assessed
before concluding to the competence of a national deciding body.
14.
In view of the above, the Chamber established that the Respondent/CounterClaimant’s objection to the competence of FIFA to deal with the present matter had to
be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter as to
the substance.
Player L, from country P / Club V, form country R /
Club F, from country P
7/14
15.
Subsequently, the members of the Chamber analysed which edition of the Regulations
should be applicable as to the substance of the matter. In this respect, the Chamber
confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions
2010, 2012 and 2014) and considering that the claim in front of FIFA was lodged on 12
October 2012, the 2010 edition of said Regulations is applicable to the present matter
as to the substance.
16.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file.
17.
In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that, on 19 February 2008, they signed an employment contract originally valid
as from 22 February 2008 until 31 December 2010.
18.
Furthermore, the DRC acknowledged that it was also undisputed by the parties that
they had concluded an undated “annex to the contract”, by means of which the latter
was extended for the period of 15 December 2010 until 30 June 2013, and the
Claimant/Counter-Respondent would be entitled to receive the amounts detailed in
point I.5. above.
19.
Finally, the Chamber noted that the parties also did not dispute the fact that the
contract was unilaterally terminated by the Claimant/Counter-Respondent, in writing,
on 7 August 2012.
20.
Having said that, the DRC noted that, on the one hand, the Claimant/CounterRespondent claims that, in spite of his warnings dated 18 July 2012, 27 July 2012 and 2
August 2012, the Respondent/Counter-Claimant failed to pay him 7 monthly salaries
for the period of January to July 2012. Furthermore, the Claimant/Counter-Respondent
states that he had borne all the expenses of the treatment of an injury, despite the
Respondent/Counter-Claimant’s alleged contractual obligation to bear such costs.
Finally, the Claimant/Counter-Respondent claims that the Respondent/CounterClaimant failed to provide him with any instructions regarding his new training
schedule as from 16 July 2012, in spite of his written requests. Thus, he unilaterally
terminated the contract on 7 August 2012.
21.
Subsequently, the DRC noted that, on the other hand, the Respondent/CounterClaimant deems that the Claimant/Counter-Respondent terminated the contract
without just cause on 7 August 2012, as he allegedly failed to comply with the training
schedule prescribed by the club, from 14 to 21 July 2012. Furthermore, the
Respondent/Counter-Claimant claims that, due to a disciplinary violation, the
Claimant/Counter-Respondent was imposed a sanction corresponding to 25% of his
earnings for the 2011/2012 season, ratified on 11 July 2012 by the country R
Professional Football Federation Disciplinary Commission. As a consequence, the
Player L, from country P / Club V, form country R /
Club F, from country P
8/14
Respondent/Counter-Claimant deems that it paid the Claimant/Counter-Respondent an
amount higher than the one he was entitled to receive as per the contract. Thus, on 23
November 2012, it lodged a counterclaim against him, requesting the amounts
detailed in point I.18. above.
22.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant/Counter-Respondent, the
counterclaim of the Respondent/Counter-Claimant and the allegations of both parties,
was to determine whether the Claimant/Counter-Respondent had had a just cause to
unilaterally terminate the employment contract on 7 August 2012.
23.
At this point and for the sake of good order, the Chamber recalled the basic principle
of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to
which a party claiming a right from an alleged fact shall carry the respective burden of
proof.
24.
In this respect, the DRC noted that the Claimant/Counter-Respondent has provided a
copy of the correspondence addressed to the Respondent/Counter-Claimant on 18 July
2012, 27 July 2012 and 2 August 2012, reminding it of the existence of unpaid salaries
for the months of January to July 2012, as well as requesting information about his
training schedule.
25.
Furthermore, the Chamber duly noted that the Respondent/Counter-Claimant claims
not to have any outstanding amounts towards the Claimant/Counter-Respondent, but
on the contrary it would have paid him an amount higher than the one he was
actually entitled to receive as per the contract. In support of its allegations, the
Respondent/Counter-Claimant provides copies of several receipts in the total amount
of EUR 162,143.113, allegedly paid to the Claimant/Counter-Respondent by 9 May
2012, as well as a ratification by the country R Professional Football Federation
Disciplinary Commission dated 11 July 2012, regarding the imposition of a fine
amounting to 25% of the Claimant/Counter-Respondent’s earnings for the 2011/2012
season.
26.
Bearing in mind the aforementioned art. 12 par. 3 of the Procedural Rules, the DRC
noted that the Respondent/Counter-Claimant bore the burden of proof regarding the
payment of the Claimant/Counter-Respondent’s remuneration or the reasons not to
have complied with such contractual obligation.
27.
With regard to the receipts presented by the Respondent/Counter-Claimant,
mentioned in points I.16. and II.25. above, the DRC first noted that they were only
submitted in their original language, without a translation. At this point, the Chamber
deemed it appropriate to remind the parties that, in accordance with art. 9 par. 1 lit.
e) of the Procedural Rules, all documentation provided in the context of a dispute in
front of FIFA should be presented in the original version and, if applicable, translated
Player L, from country P / Club V, form country R /
Club F, from country P
9/14
into one of the official FIFA languages (English, French, Spanish and German). Bearing
in mind the wording of the aforementioned provision, the Chamber concluded that
the receipts provided by the Respondent/Counter-Claimant without a translation into
one of the aforementioned official FIFA languages could not be taken into account.
Consequently, the members of the DRC deemed that no substantial evidence was
provided by the Respondent/Counter-Claimant with regard to the payment of the 7
monthly salaries claimed by the Claimant/Counter-Respondent as outstanding.
28.
In continuation, the DRC went on to analyse the second argument of the
Respondent/Counter-Claimant, regarding the imposition of a financial sanction on the
Claimant/Counter-Respondent for an alleged, unspecified breach of contract on his
part. In this regard, the DRC, always bearing in mind the principle or burden of proof,
noted that the Respondent/Counter-Claimant did not provide a copy of a decision
allegedly taken by its administrative board on 27 April 2012 or any evidence or
specification regarding the disciplinary violation allegedly committed by the
Claimant/Counter-Respondent, leading to the application of such fine.
29.
Likewise, the DRC acknowledged that the Claimant/Counter-Respondent rejected the
aforementioned argument of the Respondent/Counter-Claimant, pointing out that he
was never informed of and never participated in the proceedings leading to the
imposition of such fine. Furthermore, the Chamber noted that the
Respondent/Counter-Claimant was not able to provide any substantial proof of the
Claimant/Counter-Respondent’s participation in these procedures or that he was even
made aware of it prior to having lodged his claim before FIFA.
30.
Subsequently, the Chamber further wished to point out that the fine allegedly
imposed on the Claimant/Counter-Respondent for an unspecified and unproved
disciplinary violation, not supported by any substantial evidence in this regard, and
amounting to 25% of his earnings for an entire season must be considered
disproportionate and therefore not applicable.
31.
In this context, and irrespective of the foregoing considerations, the Chamber wished
to point out that the imposition of a fine, or any other available financial sanction in
general, shall not be used by clubs as a means to set off outstanding financial
obligations towards players. Consequently, the Chamber decided to reject the
Respondent/Counter-Claimant’s argument in this regard.
32.
In continuation, the DRC noted that while the Claimant/Counter-Respondent claims
that the Respondent/Counter-Claimant failed to provide him with any information
regarding his training schedule as from 16 July 2012, and supports his allegations with
the warnings sent to the club in this regard on 18 July 2012, 27 July 2012 and 2 August
2012, the Respondent/Counter-Claimant was not able to provide any documentation
proving that it had indeed notified the Claimant/Counter-Respondent of his trainings
schedule. In particular, the DRC noted that the only document provided by the
Player L, from country P / Club V, form country R /
Club F, from country P
10/14
Respondent/Counter-Claimant in this regard, is a report of its physical coach dated 20
July 2012, attesting the player’s alleged non-compliance with a supposed training
schedule from 14 to 21 July 2012. In this respect, the Chamber deemed it appropriate
to emphasize that such a report, issued by an employee of the club, did not consist of
objective and impartial evidence of the Respondent/Counter-Claimant’s allegation
and, thus, cannot be taken into account.
33.
In view of the foregoing allegations and documentation presented by both parties,
the Chamber concluded that, on 7 August 2012, as the Claimant/Counter-Respondent
terminated the contract, 7 monthly salaries for January to July 2012 had remained
unpaid by the Respondent/Counter-Claimant and that such non-payment could not be
justified by the latter. Therefore, and in line with its well-established and longstanding
jurisprudence, the Chamber concluded that the Claimant/Counter-Respondent had a
just cause to terminate the contract on 7 August 2012 and was consequently entitled
to receive an amount of compensation by the Respondent/Counter-Claimant, in
addition to any outstanding monies.
34.
Prior to establishing the amount of compensation for breach of contract due to the
Claimant/Counter-Respondent by the Respondent/Counter-Claimant, the DRC
proceeded with the calculation of the outstanding monies payable to the
Claimant/Counter-Respondent under the terms of the employment contract until the
date of termination, i.e. on 7 August 2012.
35.
Taking into consideration the Claimant/Counter-Respondent’s claim as well as the
reasons previously exposed, the DRC concluded that, in accordance with the general
legal principle of pacta sunt servanda, the Respondent/Counter-Claimant must fulfill
its obligations as per the employment contract concluded with the Claimant/CounterRespondent and, consequently, is to be held liable to pay the outstanding
remuneration due to the latter in the total amount of EUR 86,100, corresponding to 7
monthly salaries from January to July 2012.
36.
In addition, taking into account the Claimant/Counter-Respondent'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 Claimant/Counter-Respondent interest at the
rate of 5% p.a. on each outstanding salary, as from their respective due dates, as
detailed in point III.4. below.
37.
The Chamber subsequently took note of the Claimant/Counter-Respondent’s request
for the payment of the amount of currency of country R 2,428 or EUR 531 as
reimbursement of costs in connection with his injury by the Respondent/CounterClaimant.
38.
In this regard, the Chamber focused its attention on the analysis of art. 3 of the annex,
quoted in point I.6. above. Having carefully analysed the wording of such article, the
Chamber was of the opinion that the clause in question does not clearly and
Player L, from country P / Club V, form country R /
Club F, from country P
11/14
specifically established that the Claimant/Counter-Respondent should be entitled to
the reimbursement of any expenses made in connection with the treatment of an
injury acquired while performing his work. Therefore, the Chamber concluded that
such claim of the Claimant/Counter-Respondent had to be rejected.
39.
Having established the outstanding amounts due to the Claimant/Counter-Respondent
by the Respondent/Counter-Claimant, the Chamber focused its attention on the
calculation of the amount of compensation for breach of contract in the case at stake.
In doing so, the members of the Chamber firstly 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 Claimant/Counter-Respondent 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.
40.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to 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.
41.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from 7
August 2012 until 30 June 2013. The Chamber concluded that the amount of EUR
135,300, corresponding to the Claimant/Counter-Respondent’s remuneration for 11
residual months, serves as the basis for the final determination of the amount of
compensation for breach of contract.
42.
In continuation, the Chamber verified as to whether the Claimant/Counter-Respondent
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 Dispute Resolution Chamber, 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.
43.
In this regard, the Chamber noted that on 5 September 2012 the Claimant/CounterRespondent signed a new employment contract with the Club F, from country P, valid
as from the date of signature until 30 June 2013, according to which he was entitled
to a global salary of EUR 7,400.
Player L, from country P / Club V, form country R /
Club F, from country P
12/14
44.
Consequently, on account of all of the above-mentioned considerations, the Chamber
decided that the Respondent/Counter-Claimant must pay the amount of EUR 127,900
to the Claimant/Counter-Respondent as compensation for breach of contract, plus
interest of 5% p.a. as of 12 October 2012 until the date of effective payment, in
accordance with the Claimant/Counter-Respondent’s request and the Chamber’s wellestablished jurisprudence.
45.
For all the above reasons, the DRC decided to partially accept the claim of the
Claimant/Counter-Respondent and holds the Respondent/Counter-Claimant liable to
pay the Claimant/Counter-Respondent the amount of EUR 86,100 as outstanding
remuneration, plus 5% interest p.a. as from each respective due date until the date of
effective payment, as well as the amount of EUR 127,900 as compensation for breach
of contract, plus interest of 5% p.a. as of 12 October 2012.
46.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant/Counter-Respondent is
rejected and that the counterclaim of the Respondent/Counter-Claimant is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player L, is admissible.
2.
The claim of the Claimant/Counter-Respondent is partially accepted.
3.
The counterclaim of the Respondent/Counter-Claimant, Club V, is rejected.
4.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 86,100 plus 5% interest p.a. until the
date of effective payment, as follows:
a.
b.
c.
d.
e.
f.
g.
5% p.a. as of 26 January 2012 over the amount of EUR 12,300;
5% p.a. as of 26 February 2012 over the amount of EUR 12,300;
5% p.a. as of 26 March 2012 over the amount of EUR 12,300;
5% p.a. as of 26 April 2012 over the amount of EUR 12,300;
5% p.a. as of 26 May 2012 over the amount of EUR 12,300;
5% p.a. as of 26 June 2012 over the amount of EUR 12,300;
5% p.a. as of 26 July 2012 over the amount of EUR 12,300.
Player L, from country P / Club V, form country R /
Club F, from country P
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5.
The Respondent/Counter-Claimant is ordered to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 127,900 plus 5% interest
p.a. as from 12 October 2012 until the date of effective payment.
6.
Any further claims of the Claimant/Counter-Respondent are rejected.
7.
In the event that the amounts due to the Claimant/Counter-Respondent plus interest
are 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.
8.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant immediately and directly of the account number to which the remittances
are 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:
Player L, from country P / Club V, form country R /
Club F, from country P
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Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Player L, from country P / Club V, form country R /
Club F, from country P
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