Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2015,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
Leonardo Grosso (Italy), member
John Bramhall (England), member
on the matter between the club,
Club A, country B
as Claimant / Counter-Respondent
and the player,
Player C, country D
as Respondent 1 / Counter-Claimant
and the club,
Club E, country D
as Respondent 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 July 2011, the player from country D, Player C (hereinafter: the
Respondent 1 / Counter-Claimant), born on 28 August 1985 and the club from
country B, Club A (hereinafter: the Claimant / Counter-Respondent), signed an
employment contract (hereinafter: the contract) valid as from the date of
signature until 30 June 2013.
2.
In accordance with the contract, the Respondent 1 / Counter-Claimant was
entitled to receive, per season, “the gross annual salary amounting to the
country B’s currency equivalent of EUR 312,500…making the net annual salary
amounting to the country B’s currency equivalent of EUR 250,000… or the
monthly gross salary amounting to the country B’s currency equivalent of EUR
26,041.66…”.
3.
Art. 4.2 of the contract stipulated that the Claimant / Counter-Respondent is
obliged to provide Respondent 1 / Counter-Claimant with 3 round trip business
class air tickets, 2 for him and 1 for his spouse, per year, in the route city F –
city G, plus 1 round trip infant air ticket in the route city F – city G.
Furthermore, said article established that the Claimant / Counter-Respondent
would reimburse the Respondent 1 / Counter-Claimant with a one-time
payment of EUR 3,000 as moving expenses, upon receiving a valid invoice from
the Respondent 1 / Counter-Claimant.
4.
According to art. 4.4 of the contract, the Respondent 1 / Counter-Claimant
shall issue an invoice each month to the Claimant / Counter-Respondent, and
the Claimant / Counter-Respondent shall pay the invoice within 15 days from
the date the Respondent 1 / Counter-Claimant submitted each invoice.
5.
In addition, according to art. 5.17 of the contract, the Respondent 1 / CounterClaimant shall commission a certified accountant to maintain his business
books.
6.
Furthermore, art. 11 of the contract established that, on one hand, the
Claimant / Counter-Respondent was authorized to punish the Respondent 1 /
Counter-Claimant in line with its by-laws, and that the Respondent 1 / CounterClaimant accepted, by signing the contract, the application of the regulations
regarding punishments and to pay fines to the Claimant / Counter-Respondent.
On the other hand, said clause stipulated that each party was authorized to
unilaterally terminate the contract in case of violation of the contract by the
other party.
7.
On 6 July 2011, the Respondent 1 / Counter-Claimant and the Claimant /
Counter-Respondent signed an agreement (hereinafter: the supplemental
Club A, country B / Player C, country D and Club E, country D
2/16
agreement) where it was stipulated that the club would pay the Respondent 1
/ Counter-Claimant EUR 625 per month as an accommodation allowance
during the term of the contract.
8.
On 3 February 2012, the Respondent 1 / Counter-Claimant and the club from
country D, Club E (hereinafter: the Respondent 2), signed an employment
contract valid as from the date of signature until 31 January 2015.
9.
On 9 May 2012, the Claimant / Counter-Respondent lodged a claim in front of
FIFA against the Respondent 1 / Counter-Claimant, maintaining that the
Respondent 1 / Counter-Claimant is to be held liable for breach of contract
without just cause on 16 January 2012 and payment of compensation in the
amount of USD 650,000, plus interest as of 17 January 2012.
10.
The Claimant / Counter-Respondent further claimed that the Respondent 2
shall be held jointly and severally liable for the payment of compensation.
Moreover, the Claimant / Counter-Respondent claimed an unspecified amount
for costs.
11.
The Claimant / Counter-Respondent maintained that, by means of a letter
dated 16 January 2012, the Respondent 1 / Counter-Claimant terminated the
contract without just cause. In this respect, the Claimant / Counter-Respondent
argued that the Respondent 1 / Counter-Claimant provided his invoices for the
payment of his salary corresponding to the months of November and
December 2011 to it, on 24 January 2012 only, and which, according to the
Claimant / Counter-Respondent, were paid the very next day.
12.
Furthermore, the Claimant / Counter-Respondent explained that it instituted a
disciplinary proceeding against the Respondent 1 / Counter-Claimant on 18
January 2012 and decided to fine the Respondent 1 / Counter-Claimant in the
amount of “the country B’s currency equivalent to EUR 22,000” after the
Respondent 1 / Counter-Claimant failed to appear for the match played on 16
January 2012, and also missed the morning and afternoon trainings held on 17
January 2012.
13.
Therefore, the Claimant / Counter-Respondent deemed that the Respondent 1
/ Counter-Claimant did not have just cause to terminate the contract, as it
argued that it was the Respondent 1 / Counter-Claimant’s fault which
prevented the Claimant / Counter-Respondent from making the due payments,
since the contract stipulated that the invoices have to be paid within 15 days
from the date of reception, and it was the Respondent 1 / Counter-Claimant
who failed to produce his invoices in a timely manner. In consequence, the
Claimant / Counter-Respondent requested damages, taking into account the
principle of positive interest, which in this case was to be measured by the
Club A, country B / Player C, country D and Club E, country D
3/16
offer to transfer the player, received from the club from country H, Club I, in
the amount of USD 650,000.
14.
On 24 May 2013, the Respondent 1 / Counter-Claimant lodged a claim against
the Claimant / Counter-Respondent for outstanding remuneration. In this
regard, the Respondent 1 / Counter-Claimant asked to be awarded payment of
EUR 29,349.78, plus 5% interest p.a. In addition, the Respondent 1 / CounterClaimant requested that sporting sanctions be imposed on the Claimant /
Counter-Respondent.
15.
According to the Respondent 1 / Counter-Claimant, between July 2011 and
January 2012 and despite numerous verbal and written requests, the Claimant
/ Counter-Respondent consistently refused to pay or was late in paying his
salary.
16.
In this regard, the Respondent 1 / Counter-Claimant explained that he
terminated the contract on 16 January 2012, by means of a letter (hereinafter:
the termination notice) sent on that date, by his agent on his behalf. The
Respondent 1 / Counter-Claimant argued he had just cause to terminate the
contract due to the alleged consistent late payments and non-payments of the
remuneration he was contractually entitled to.
17.
In this respect, the termination notice stated that, according to the
Respondent 1 / Counter-Claimant, at the date of termination, 508,675.81 out
of a total of 966,796.22 he was supposed to earn as salary, remained
outstanding. Moreover, the termination notice stated that the Claimant /
Counter-Respondent owed Respondent 1 / Counter-Claimant a further EUR
2,500, out of a total of EUR 3,000, in outstanding accommodation allowances.
The Respondent 1 / Counter-Claimant concluded that the total amount
outstanding at the date of termination was 546,385.55.
18.
The Respondent 1 / Counter-Claimant further argued that after the
termination notice was sent, although some telephone conversations and a
meeting were held with officials of the Claimant / Counter-Respondent in
order to settle the issue, no amicable settlement was reached between the
Respondent 1 / Counter-Claimant and the Claimant / Counter-Respondent.
19.
On 9 July 2014, the Respondent 1 / Counter-Claimant, after being informed of
the Claimant / Counter-Respondent’s claim, rejected said claim and explained
that although he submitted his initial claim on 24 May 2013, “if, however, [the
Claimant / Counter-Respondent]’s claim was submitted prior to 24 May 2013,
[the Claimant / Counter-Respondent]’s claim should be considered the main
claim”.
Club A, country B / Player C, country D and Club E, country D
4/16
20.
Nonetheless, the Respondent 1 / Counter-Claimant insisted on the arguments
stated in his initial claim, and again requested to be awarded payment of EUR
29,349.78, plus 5% interest p.a. and sporting sanctions be imposed on the
Claimant / Counter-Respondent. In this regard, the Respondent 1 / CounterClaimant insisted that despite numerous verbal and written requests, the
Claimant / Counter-Respondent consistently refused to pay or was late in
paying his salary and that the total amount outstanding at the date of
termination was 546,385.55, and that in consequence, he had just cause to
terminate the contract.
21.
According to the Respondent 1 / Counter-Claimant, it was only after the
termination of the contract by means of the termination notice sent by him,
that the Claimant / Counter-Respondent first claimed that the non-receipt of
his invoices was the reason for the late payments.
22.
Furthermore, the Respondent 1 / Counter-Claimant argued that he was
instructed by the Claimant / Counter-Respondent to issue his invoices through
an accountant, and therefore, he was not involved in the issuance of the
invoices.
23.
Moreover, the Respondent 1 / Counter-Claimant argued that on 26 January
2012, the Claimant / Counter-Respondent’s financial director, Mr J, sent an
email to his agent, in order to clarify the amounts owed to him, which
enclosed a financial statement titled “2011 Financial Account”, which
according to the Respondent 1 / Counter-Claimant, had the obligations of the
Claimant / Counter-Respondent reflected inaccurately. In this respect, the
Respondent 1 / Counter-Claimant argued that the amounts for flight tickets
and accommodation were wrongly stated on said document.
24.
The Respondent 1 / Counter-Claimant further argued that the document titled
“2012 Financial Account”, enclosed to the Claimant / Counter-Respondent’s
claim, is unreliable, as it had fabricated figures in it. In this regard, the
Respondent 1 / Counter-Claimant argued that it contradicts the document
titled “2011 Financial Account” in respect to his October 2011 salary and
accommodation allowance. He also argued that the document titled “2012
Financial Account”, showed that the Claimant / Counter-Respondent
acknowleged that his salaries were supposed to be paid on the 15 th day of the
month following the relevant salary month, which according to the player, is a
common practice in country B’s football.
25.
The player stated that the fact that the Claimant / Counter-Respondent was
punished by UEFA, in line with Financial Fair Play regulations, was proof of the
Claimant / Counter-Respondent’s bad financial situation, which most likely was
the reason of the non-payment of his salaries.
Club A, country B / Player C, country D and Club E, country D
5/16
26.
Subsequently, the Respondent 1 / Counter-Claimant argued that the Claimant /
Counter-Respondent’s disciplinary action against him was groundless and the
offer enclosed to the Claimant / Counter-Respondent’s claim was contradictory,
as it is dated 2 December 2012, which is 7 months after the date its claim was
lodged.
27.
Moreover, the Respondent 1 / Counter-Claimant argued that up until 25
January 2012, EUR 29,349.78 were still outstanding. In this regard, the
Respondent 1 / Counter-Claimant enclosed his breakdown of the amounts
allegedly owed and allegedly paid by the Claimant / Counter-Respondent, at
the date of termination and up until 25 January 2012.
28.
On its part, the Claimant / Counter-Respondent highlighted that the
Respondent 1 / Counter-Claimant was entitled to receive a monthly gross salary
of EUR 25,041.68, which according to it, was equivalent to country B’s currency
195,312.45 and that the Respondent 1 / Counter-Claimant was obliged to hire
a certified accountant to maintain his business books.
29.
Furthermore, the Claimant / Counter-Respondent declared that it always
fulfilled its obligations towards the Respondent 1 / Counter-Claimant as set in
the contract. In this respect, and in order to explain the payments to the
Respondent 1 / Counter-Claimant, the Claimant / Counter-Respondent
provided a table of the Respondent 1 / Counter-Claimant’s account inside the
Claimant / Counter-Respondent’s accountability, which according to it,
contained the total debts towards the Respondent 1 / Counter-Claimant until
31 December 2011. The Claimant / Counter-Respondent stressed the following
details in respect to the debts towards the Respondent 1 / Counter-Claimant:
Salary of July 2011 in the amount of 161,132.77 due on 1 August 2011;
Salary of August 2011 in the amount of 161,132.77 due on 31 August
2011;
Salary of September 2011 in the amount of 157,714.80 due on 15
October 2011;
“Moving expenses and Accommodation” in the amount of 22,500 due
on 15 October 2011;
“July/ August / September” in the amount of 11,355.47 due on 30
September 2011;
Salary of October 2011 in the amount of 161,499.96 due on 15
November 2011;
“Flight Tickets” in the amount of 10,205.20 due on 12 November 2011;
Salary of November 2011 in the amount of 161,499.96 due on 15
January 2012;
Salary of December 2011 in the amount of 161,499.96 due on 15
January 2012;
“Total debt”: 1,008,540.89
Club A, country B / Player C, country D and Club E, country D
6/16
30.
Subsequently, the Claimant / Counter-Respondent proceeded to explain the
alleged payments of each monthly salary, which for the sake of clarity will be
explained in the following table:
Monthly
Salary
or
nature
of
Other
payments
to
the
Respondent
1
/
Counter-Claimant
Salary July 2011
Alleged
date
of Alleged
Payments
invoice from the the from the Claimant /
Respondent
1
/ CounterCounter-Claimant and Respondent
alleged due date of
payment
Invoice date:
- Payment of 50,000
16 September 2011
on 21.09.2011.
Due date of payment:
1 October 2011
- Payment of 73,632.77
on 30.09.2011
- Payment of 37,500
on 30.09.2011.
Total
alleged
payments
for
the
salary of July 2011:
161,132.77
Salary August 2011
Invoice date:
16 September 2011
Due date of payment:
1 October 2011
According
to
the
Claimant
/
CounterRespondent,
these
payments correspond to
“Accommodation
allowance”,
“Moving
expenses”, and “Mobile
phone expenses”.
Payment
161,132.77
24.10.2011.
Total
alleged
payments
for
the
salary of August 2011:
161,132.77
- Payment of 3,867.23
on 24.10.2011.
- Payment of 26,000
on 24.10.2011.
- Payment of 2,842.40
on 24.10.2011.
Total
Club A, country B / Player C, country D and Club E, country D
of
on
alleged
other
7/16
payments done
October 2011:
32,709.63
Salary September 2011
in
Invoice date:
30 September 2011
- Payment of 48,000
on 24.11.2011
Due date of payment:
15 October 2011
Payment
109,714.80
14.12.2011
According
to
the
Claimant
/
CounterRespondent,
this
payment corresponds to
“Part of Accommodation
allowance”.
Salary October 2011
Invoice date:
30 October 2011
Due date of payment:
14 November 2011
of
on
Total
alleged
payments
for
the
salary of September
2011:
157,714.80
- Payment of 1,145.84
on 14.12.2011
- Payment of 80,000
on 10.01.2012
- Payment of 81,499.96
on 25.01.2012
Total
alleged
payments
for
the
salary
of
October
2011:
161.499.96
Salary
November 2011
Invoice date:
24 January 2012
- Payment of 7,500 on
31.12.2011
Due date of payment:
8 February 2012
Payment
153,999.96
25.01.2012
Total
payments
salary of
Club A, country B / Player C, country D and Club E, country D
of
on
alleged
for
the
November
8/16
Salary
December 2011
Invoice date:
24 January 2012
2011:
161.499.96
Payment
161,499.96
25.01.2012
of
on
Due date of payment:
8 February 2012
31.
With respect to its delays in the payments to the Respondent 1 / CounterClaimant, the Claimant / Counter-Respondent argued that they are completely
acceptable, as it is part of the world of football and explained the following in
respect to each monthly salary payment:
Salary July 2011: The Claimant / Counter-Respondent argued that “it
paid on time”;
Salary August 2011: The Claimant / Counter-Respondent argued that
“the payment was performed 23 days after the due date because it had
cash flow difficulties at the time”;
Salary September 2011: The Claimant / Counter-Respondent argued that
“the payment was performed no more than 45 days late”;
Salary October 2011: The Claimant / Counter-Respondent argued that
“the payment was performed with certain delays despite it was facing
financial difficulties”;
Salary November 2011: The Claimant / Counter-Respondent argued that
“the payment was performed in December 2012 and the remaining
amount one day after presenting the invoice”;
Salary December 2011: The Claimant / Counter-Respondent argued that
“the payment was performed one day after presenting the invoice”.
32.
The Claimant / Counter-Respondent further argued that it had complied with
its obligation regarding flight tickets as the Respondent 1 / Counter-Claimant
only sent an invoice in the amount of 10,205.20, which was paid according to
the Claimant / Counter-Respondent on 16 January 2012.
33.
In addition, the Claimant / Counter-Respondent argued that although it is very
difficult to prove any possible inducement by the Respondent 2 over the
Respondent 1 / Counter-Claimant to breach the contract, the Respondent 2
must be held jointly liable to pay any compensation related to the breach.
34.
Furthermore, the Claimant / Counter-Respondent amended its request for
relief, requesting the following:
-
EUR 132,025 as salaries paid to the Respondent 1 / Counter-Claimant;
USD 650,000 as “loss of the opportunity to negotiate the transfer of the
Respondent 1 / Counter-Claimant to another club”;
Club A, country B / Player C, country D and Club E, country D
9/16
-
EUR 100,000 as compensation for breach of the contract without just
cause, considering the Claimant / Counter-Respondent’s need to replace
the Respondent 1 / Counter-Claimant;
Request that the Respondent 2 shall be deemed jointly and severally
liable for the payment of compensation and sporting sanctions be
imposed on the Respondent 1 / Counter-Claimant.
-
35.
The Respondent 1 / Counter-Claimant submitted his final comments, where he
repeated his position, and argued that the payments for the months from
September 2011 to December 2011 are not in compliance with the terms of the
contract.
36.
In particular, the Respondent 1 / Counter-Claimant contested the Claimant /
Counter-Respondent’s allegations, inter alia, as follows:
-
The amounts he was entitled to receive are the following:
161,132 net as monthly salary;
3,785.16 net as monthly accommodation;
109,714.80 corresponding to his round flight ticket;
22,500 net as moving expenses.
The invoice date stated by the Claimant / Counter-Respondent for the
November and December 2011 salaries is wrong, as it should be 31
December 2011 and not 24 January 2012;
The Claimant / Counter-Respondent’s contradictions between its
allegations and the documents titled “Financial Account 2011” and
Financial Account 2012”.
-
-
37.
The Respondent 1 / Counter-Claimant amended his claim, and requested to be
awarded payment of EUR 26,637.66, plus 5% interest p.a. In addition, the
player requested that sporting sanctions be imposed on the Claimant /
Counter-Respondent.
38.
The Respondent 1 / Counter-Claimant provided his own breakdown of the
amounts owed and paid in the matter at hand as follows:
“Total amount as of 16 January 2012”: 1,118,879.97
“Total payments made up until 16 January 2012 (at the time the
contract was terminated)”: 594,993.41
“Total amounts outstanding on 16 January 2012 (at the time the
contract was terminated)”: 523,886.56
“Total amount under the contract (between the period of 1 July 2011
and 16 January 2012”: 1,203,998.90
“Total payments made up until 25 January 2012”: 1,002,198.41
Club A, country B / Player C, country D and Club E, country D
10/16
“Total amount outstanding on 23 May 2013 in country B’s currency”:
201,800.49
“Total amount outstanding on 23 May 2013 in EUR”: 26,637.66
39.
On its part, the Respondent 2 explained that it only engaged the Respondent 1
/ Counter-Claimant, after it was assured by the Respondent 1 / CounterClaimant’s legal representative, that the Respondent 1 / Counter-Claimant had
terminated his contract with the Claimant / Counter-Respondent with just
cause. The Respondent 2 declared that it never had the intention to induce the
Respondent 1 / Counter-Claimant to commit a breach of his contract, as the
Respondent 2 was “nothing but a pure third party without any knowledge on
the essentiality on the dispute between [the Respondent 1 / Counter-Claimant]
and [the Claimant / Counter-Respondent]”.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, the DRC took note that the present matter was
submitted to FIFA on 9 May 2012. Consequently, the Chamber concluded that
the 2008 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) is applicable to the matter at hand (cf. art. 21 of the 2008, 2012, 2014
and 2015 editions of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (edition 2015) the DRC
would, in principle, be competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension
between a club from country B, a player from country D and a club from
country D.
3.
The competence of the Chamber having been established, the Chamber
analysed which edition of the Regulations on the Status and Transfer of
Players should be applicable as to the substance of the matter. In this respect,
it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on
the Status and Transfer of Players (editions 2010, 2012, 2014 and 2015), and
considering that the present matter was submitted to FIFA on 9 May 2012, the
2012 edition of the aforementioned regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
Club A, country B / Player C, country D and Club E, country D
11/16
4.
Having established the foregoing, and entering into the substance of the
matter, the Chamber continued by acknowledging the above-mentioned facts
as well as the documentation contained in the file in relation to the substance
of the matter. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary
evidence which it considered for the assessment of the matter at hand.
5.
In this respect, the members of the DRC took note that on 1 July 2011, an
employment contract was concluded between the Claimant / CounterRespondent and the Respondent 1 / Counter-Claimant for the period from 1
July 2011 until 30 June 2013.
6.
In continuation, the Chamber acknowledged that it had been uncontested by
the parties that the Respondent 1 / Counter-Claimant prematurely terminated
the employment contract on 16 January 2012, by means of a termination
notice.
7.
Within this context, the members of the DRC took note that the Respondent 1
/ Counter-Claimant considered the contract as terminated with just cause as
from 16 January 2012, on the grounds of the alleged consistent late payments
and non-payments of monthly salaries and other remuneration from the
Claimant / Counter-Respondent towards him. Moreover, the DRC observed that
the Respondent 1 / Counter-Claimant sustained that at the time of
termination, i.e. 16 January 2012, the Claimant / Counter-Respondent held a
debt towards him of 523,886.56.
8.
On the other hand, the Chamber acknowledged the Claimant / CounterRespondent’s argument, according to which the Respondent 1 / CounterClaimant prematurely terminated the contract without just cause, as according
to it, the partial non-payment of his remuneration was due only to his own
failure to produce the relevant invoices on time.
9.
The DRC analysed that, in order to substantiate its argument, the Claimant /
Counter-Respondent, first referred to the contents of art. 4.4. of the contract,
which established that the Respondent 1 / Counter-Claimant shall issue an
invoice each month to the Claimant / Counter-Respondent, and the Claimant /
Counter-Respondent shall pay the corresponding invoice within 15 days from
the date the Respondent 1 / Counter-Claimant submitted each invoice.
10.
In this respect, the Chamber unanimously agreed that the above-mentioned
clause, which makes the payment of remuneration for services rendered
dependent on the issuance of an invoice by the employee, cannot be
acceptable. The Chamber concluded that the object of an employment
contract between a player and a club, i.e. the rendering of professional
football services in exchange for a remuneration, would be disrupted with
Club A, country B / Player C, country D and Club E, country D
12/16
such a clause, as a player would have an extra obligation just to receive his
basic remuneration.
11.
Furthermore, the DRC noted that the Claimant / Counter-Respondent, in
support of its argumentation, also referred to the contents of art. 5.17. of the
contract, which established that the Respondent 1 / Counter-Claimant shall
commission a certified accountant to maintain his business books.
12.
In this regard, the members of the DRC concluded that the aforementioned
clause unjustifiably imposed an administrative burden on the Respondent 1 /
Counter-Claimant, as he was supposed to hire an employee to ensure the due
payment of his remuneration. In consequence, the DRC agreed that such a
clause cannot be considered valid.
13.
The Chamber highlighted that both art. 4.4. and 5.7, were drafted in such a
way that it would greatly be to the benefit of the Claimant / CounterRespondent and in consequence, the DRC rejected the Claimant / CounterRespondent’s defence of the partial non-payment of the remuneration due to
the Respondent 1 / Counter-Claimant, as it was his own fault to produce the
relevant invoices on time and his failure to engage an accountant to take care
of his bookkeeping, that prevented the Claimant / Counter-Respondent to pay
the Respondent 1 / Counter-Claimant on time.
14.
Subsequently, the members of the Chamber noted that the Claimant /
Counter-Respondent confronted the Respondent 1 / Counter-Claimant’s
argument on the existence of the aforementioned debt in the amount of
523,886.56 since, according to the Claimant / Counter-Respondent, it always
fulfilled its obligations towards the Respondent 1 / Counter-Claimant as set in
the contract.
15.
In this regard, the DRC took into consideration that the Claimant / CounterRespondent acknowledged delays in the payment of the Respondent 1 /
Counter-Claimant’s remuneration. The members of the Chamber observed that
in relation to this, the Claimant / Counter-Respondent sustained that the late
payments to the Respondent 1 / Counter-Claimant, were completely
acceptable, as it is part of the world of football. The DRC took note that,
specifically, the Claimant / Counter-Respondent brought up “cash flow
difficulties” and “facing financial difficulties” as reasons for its late payment.
16.
In this context, the members of the Chamber agreed that the reasons put
forward by the Claimant / Counter-Respondent for the uncontested fact that
salaries of the Respondent 1 / Counter-Claimant were consistently paid late,
cannot be accepted as valid.
Club A, country B / Player C, country D and Club E, country D
13/16
17.
The Chamber further noticed that according to the documentation on file, and
the Claimant / Counter-Respondent’s own admissions, the salaries for August
to October 2011 were in fact paid late, while the salaries for November and
December 2011, were only paid after the termination of the contract.
Therefore, the Chamber was eager to point out that the relation between the
Claimant / Counter-Respondent and the Respondent 1 / Counter-Claimant was
disrupted from the beginning.
18.
In light of the above, the Chamber took into account that the Claimant /
Counter-Respondent had not indicated any valid reasons that possibly could
have justified the late and non-payment of the Respondent 1 / CounterClaimant’s remuneration during such considerable period of time.
19.
Having said that, the Chamber pointed out that, in the present matter, and
after a thorough analysis of the documentation on file, as from the starting
date of the employment contract until the date of termination, more than 3
monthly salaries remained outstanding.
20.
On account of all of the above considerations, the Chamber decided to reject
the arguments put forward by the Claimant / Counter-Respondent in its
submissions and established that the Claimant / Counter-Respondent has failed
to comply with its contractual obligations.
21.
Consequently, the Chamber decided that the Respondent 1 / Counter-Claimant
had just cause to terminate the employment contract with effect as of 16
January 2012 and that the Respondent is to be held liable for the early
termination of the contract with just cause by the Claimant.
22.
The DRC highlighted that according to the contract and the supplemental
agreement, the Respondent 1 / Counter-Claimant should have received until 16
January 2012, salaries in the amount of 1,047,363, accommodation allowances
in the amount of 24,603, as well as moving expenses in the amount of 22,500.
23.
The DRC took note that according to the contract, the Respondent 1 / CounterClaimant was entitled to 3 round trip business class air tickets, 2 for him and 1
for his spouse, per year, in the route city F – city G, plus 1 round trip infant air
ticket in the route city F – city G. However, from the flight invoice provided by
the Respondent 1 / Counter-Claimant, it could not be established which family
members were the passengers and in this respect, the Respondent 1 / CounterClaimant failed to provide any specification that would help clarify the users of
the corresponding flight tickets, in consequence, the DRC decided that the
Respondent 1 / Counter-Claimant was only entitled to the reimbursement of
one flight ticket in the amount of 55,000.
Club A, country B / Player C, country D and Club E, country D
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24.
In light of the above, the player would have received the total amount of
1,149,466 until 16 January 2012.
25.
Furthermore, the members of the DRC pointed out that, based on the
documentation on file, the Respondent 1 / Counter-Claimant received the total
amount of 1,007,389.
26.
In view of all the above, the DRC decided that, in accordance with the general
legal principle of pacta sunt servanda, the Claimant / Counter-Respondent
must fulfil its contractual obligations towards the Respondent 1 / CounterClaimant and is to be held liable to pay the Claimant the amount of 142,077,
as outstanding remuneration.
27.
In addition, taking into account the Respondent 1 / Counter-Claimant’s
request, the Chamber decided that the Claimant / Counter-Respondent must
pay to the Respondent 1 / Counter-Claimant interest of 5% p.a. on the amount
of outstanding remuneration, i.e. country B’s currency 142,077, as of the date
on which the claim was lodged, i.e., 24 May 2013 until the date of effective
payment.
28.
Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the parties.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Club A, is rejected.
2.
The counter-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, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of 142,077 plus 5% interest p.a. on
said amount as from 24 May 2013 until the date of effective payment.
4.
In the event that the aforementioned sum plus interest due to the Respondent
1 / Counter-Claimant is not paid within the stated time limit, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee
for consideration and a formal decision.
5.
Any further claim lodged by the Respondent 1 / Counter-Claimant is rejected.
Club A, country B / Player C, country D and Club E, country D
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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 under point 3. 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 article 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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Club A, country B / Player C, country D and Club E, country D
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