Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 30 November 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Roy Verm eer (Netherlands ), member
S tefano S artori (Italy ), member
Pav el Piv orav ov (Rus s ia), member
Jérôm e Perlem uter (France), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 25 January 2016, the player of Country B, Player A (hereinafter: the Claimant
or the player) and the club of Country D, Club C (hereinafter: the Respondent or
the club) concluded an employment contract (hereinafter: the contract) valid as
from the date of signature until 30 June 2018.
2.
According to art. 7 of the contract, the Claimant was entitled to the following
monthly salary:
a)
EUR 1,500 for season 2015/2016, as of 25 January 2016;
b)
EUR 3,500 for season 2016/2017, as of 1 July 2016;
c)
EUR 4,500 for season 2017/2018, as of 1 July 2017.
The monthly salary was payable “by the 20th day of the month for the previous
month“.
3.
Art. 4 of the contract stipulates that “ (…) (2) when concluding this contract, the
club made the player aware of all club’s regulations (…), viz.:
- the club’s statute,
- regulations defining players’ disciplinary liability”.
4.
Pursuant to art. 6, par. 6 of the contract, the Claimant undertook “to execute
the obligations on the basis of this contract in accordance with the instructions
of the head coach, other club officers and the club directors”.
5.
Furthermore, art. 6, par. 13 of the contract, stipulates that the Claimant
“undertakes to immediately inform the club in the event of injury or illness, and
to inform and consult the club physician before undergoing any medical
treatment or procedure and to follow his/her instructions, unless the urgency of
the treatment or procedure makes this impossible”.
6.
According to art. 12, par. 3 of the contract, “the contracting parties may
withdraw from this contract by means of written notice at any time should any
of the justifiable legal grounds for so doing arise The contracting party that
withdrew from the contract on justifiable legal grounds shall not be liable to
pay compensation and shall be not subject to any sporting sanctions stipulated
by the Football Association of Country D’s rules on player registration and
status. The following in particular are deemed justifiable legal grounds:
- a serious and long-lasting breach of contractual obligations by the other party
(…)”.
7.
On 13 February 2016, the Claimant reported an injury during a friendly match
played with the club.
8.
As from 19 to 24 February 2016, the Claimant, in agreement with the
Respondent, underwent rehabilitation in a city of Country E.
Player A, Country B / Club C, Country D
2
9.
On 28 February 2016, the Claimant played his last official match with the club.
10.
From 9 to 27 March 2016, the Claimant underwent a rehabilitation treatment in
Country B. In this regard, the Claimant submitted an email sent to him by his
physiotherapist on 29 April 2016, containing a description of the treatment
which the player had allegedly received during the above-mentioned period.
11.
On 29 March 2016, the Respondent sent a letter to the Claimant, requesting him
to return to his “working place at the stadium of Club C, in the next 24 hours”.
12.
On the same date, the Claimant replied to the Respondent that he was “already
at the stadium of Club C”, informing that, on the same day, he asked the club’s
doctor “to have the MRI to know if injury is recovered and to be part of the
team at the trainings”.
13.
On 7 April 2016, the Respondent sent a further letter to the Claimant whereby it
stated that he had not been attending trainings as from 29 March 2016
“although [the club’s] reports say that [the player is] fit to train”. Furthermore,
within the same letter the Respondent requested the Claimant to come “to the
stadium of Club C at 16:00 to visit first Team Coach F and join training of the
Club C’s First Team”.
14.
On 9 April 2016, the Claimant sent a letter to the Respondent, by means of
which he affirmed that, before 28 March 2016, he did a recovery period
“outside Club premises […] with the Club permission”. Moreover, he stated
that, from 28 March 2016, he was in the city of Club C and “following coach
instructions, proceeded to train in the gym to achieve the necessary recovery of
the injury”. Furthermore, he denied that he was fit to train with the first team
“as would have been contradictory with club instructions and the situation of
his recovery” and he pointed out that “up to the date [he] has not received any
medical confirmation / test of his full recovery and permission to train with the
first team at a regular level”.
15.
On 13 April 2016, the Claimant sent an e-mail to the club’s President, informing
him that he was “attending all first team training, but requested every day to
run around the training ground and not to train with the rest of the team”.
16.
On 19 April 2016, the Claimant sent to the Respondent an e-mail stating the
following: “please read below the medical report from our Doctor G that I am
perfectly fit from April 12, when the medical test was run. It was really
unpleasant for me not to be part of normal training during these days,
something strictly attributable to the club and I hope that no further action
against my labour rights are taken”.
17.
On 20 April 2016, the Respondent sent to the Claimant a “Resolution on the
suspension of the Professional Football Player Contract”, whereby the
Player A, Country B / Club C, Country D
3
Respondent informed him that his rights and obligations under the contract
were suspended due to the start of a disciplinary procedure against him “due to
violation of contractual obligations”, i.e.:
“1. In the period between 1.3.2016 and 29.3.2016 [the player] violated art. 6
par. 13 of [the contract] by leaving for treatment of the sports injury in Country
B, without informing and knowledge of the Club.
2. On 19.4.2016 [the player] violated art. 6 par. 6 of [the contract] by not
following the instructions of the coach and absence from the training”.
18.
Furthermore, on the same date, the Claimant received from the Respondent an
invitation to attend a hearing before the club’s disciplinary committee on 29
April 2016.
19.
On 25 April 2016, the Claimant sent a letter to the Respondent, requesting to be
provided with a copy of the club’s Statute and Disciplinary Regulations
mentioned in the invitation to the hearing, in order “to allow [him] to prepare
for the hearing”.
20.
On 29 April 2016, the hearing was held and the Claimant presented his written
defence.
21.
On 10 June 2016, the club’s disciplinary committee issue the following decision:
“ […] [the player] has presented evidence to the disciplinary committee […]
however the disciplinary committee has established that the evidence do not
prove that contractual obligations were not violated […]. As a result […]
imposes following disciplinary measure: unilateral termination of [the
contract]”.
22.
On 16 June 2016, the club’s board of directors issued a “resolution on monetary
penalty” by means of which, “due to reasonable suspicion” it imposed
monetary penalties on the Claimant in the total amount of EUR 7,000, for
having “issued statement without knowledge and consent of the club to the
journalist […] and harmed the reputation of the club”.
23.
On 8 September 2016, the Claimant lodged a claim in front of FIFA for breach of
contract, requesting the amount of EUR 102,000, plus 5 % interest p.a. as of 10
June 2016, broken-down as follows:
a)
EUR 6,000 as outstanding salaries corresponding to the months from
March to June 2016;
b)
EUR 42,000 as compensation for breach of contract for the period between
July 2016 and June 2017;
c)
EUR 54,000 as compensation for breach of contract for the period between
July 2017 and June 2018.
Furthermore, the Claimant requested the payment of attorney fees and legal
expenses.
Player A, Country B / Club C, Country D
4
24.
In his claim, the Claimant argued that the Respondent breached the contract, as
it did not pay him the salary from March 2016. Moreover, he held that the club’s
termination was without just cause.
25.
In particular, he affirmed that, during his last match with the club on 28
February 2016, he suffered a relapse and got injured again; then, on 8 March
2016, he left for rehabilitation in Country B, allegedly with the “verbal
permission” of the President and the Sport Director of the club, in order to
receive “adequate medical treatment”. More in detail, the player, referred to
“whatsapp” messages he exchanged with the Sport Director and the Team
Manager, between 1 and 9 March 2016, pointing out that: a) on 1 March 2016
the Sport Director wrote him “come to [his] office…want to talk a bit with
you”; b) on 2 March 2016, the Team Manager informed him that “the doctor
said that you are coming to the Hospital to check your leg” and the player
replied “ok, tomorrow then, no problem”; c) on 3 March 2016, the Team
Manager wrote the player “see you at 1am at the Hospital?” and the latter
replied “I think 100% yes”; d) on 9 March 2016, he wrote to the Team Manager
“No I was on Monday (7th March) […] and then I went home (Country B), I’m
with the doctor in order to do all the therapy. See you soon”, and the Team
Manager replied him “Ok, hope that you can come back as soon as possible”.
26.
Moreover, the Claimant stated that he kept, both the club’s Sport Director and
Head Coach, informed of his treatment in Country B. In particular, the player,
referring once again to the “whatsapp” and “viber” messages he exchanged
with them from 11 to 21 March 2016, emphasised that: a) on 11 March 2016, he
wrote the following to the Sport Director: “Today I have been examined by MRI
and this doctor states that it is quite complicated even to start running.
Tomorrow and within 5 following days only regenerative laser and then we will
repeat the exam so that we can see how it is going […]. I will keep you
informed” and the Sport Director replied him “Ok, thank you”; b) on 21 March
2016 he wrote to the club’s Head Coach that “Hope good news tomorrow in my
last scan and harmstring is done and come back to the Club C” and the latter
replied him “Perfect, hope everything is ok!”.
27.
Furthermore, the Claimant emphasised that, during his stay in Country B, he did
not receive any default notice from the Respondent and that, on 29 March
2016, he informed the Respondent, via whatsapp messages he exchanged with
the club’s Team Manager on 29 March 2016, that he was back at the club’s
premises and requested the programme of trainings.
28.
In continuation, the Claimant affirmed that, as allegedly confirmed by some
video-recordings he made at the club’s training facilities, since he returned from
Country B on 28 March 2016, he was present at the club’s training field, where
he was requested to run alone and not to train with the squad. In particular, the
Claimant emphasised that the same situation occurred also on 19 April 2016,
Player A, Country B / Club C, Country D
5
when he had allegedly recovered from the injury, and continued until his
suspension on 20 April 2016.
29.
As to the club’s disciplinary procedure, the Claimant argued that it was null and
void due to the violation of his right of defence, as he allegedly received the
letter of 20 April 2016 (cf. point 17 above) in language of Country D only,
language that he allegedly did not understand. Moreover, he also stressed that,
despite his request, he did not receive copy of the club’s Statutes and
Disciplinary regulations, whereon the allegations against him were allegedly
based.
30.
Finally, as to the monetary sanction notified on 16 June 2016 (cf. point 22
above), the Claimant considered that it was illegitimate and unlawful, as it had
been notified after the termination of the contract by the Respondent and
without any possibility of appeal.
31.
In its reply, the Respondent preliminarily contested FIFA’s jurisdiction on the
basis that the Claimant did not appeal the club’s disciplinary committee decision
and, thus, did not exhaust the legal remedies available under the club’s
disciplinary regulations, before lodging his claim in front of FIFA.
32.
As to the merits of the case, the Respondent rejected the Claimant’s arguments
and stressed that it terminated the contract with just cause, due to the player’s
breach of contract.
33.
In particular, the Respondent averred that it did not have any formal contact
with the Claimant as from 1 March 2016 until 9 April 2016 (cf. point 14 above)
and that the latter breached the contract as he left for Country B without the
Respondent’s permission and remained absent “for almost one month”. What is
more, the Respondent argued that the Claimant never reported anything to the
Respondent about his alleged rehabilitation. As to the communications from
the Claimant via social apps (i.e. whatsapp, viber), the Respondent affirmed that
they should not be taken into account, being informal and not allowed by the
contract.
34.
Moreover, the Respondent affirmed that, by means of a letter sent by its Sport
Director, the club replied to the player’s letter of 9 April 2016 (cf. point 14),
stating that the Respondent was not informed about his conditions for a month
and that it ordered an MRI scan on 30 March 2016 in order to check his physical
conditions. Nonetheless, the Respondent emphasised that the Claimant refused
to take such exam on 30 March and only did it on 12 April 2016. According to
the Respondent, such circumstance allegedly confirmed “that there is no solid
proof of his condition”. In this regards, the club also submitted a statement
from the radiologist, saying that the player refused to take the MRI exam on 30
March 2016 due to claustrophobia.
Player A, Country B / Club C, Country D
6
35.
Furthermore, the Respondent reported that, on 18 April 2016, it received a
medical statement “after the MRI performed to the Player which showed that
the Player had no pathological changes in morphology or the quality of signal
had been seen from the displayed structures”. According to the Respondent,
following such medical statement, the Respondent “received a confirmation
that the player is not and had not been injured”.
36.
In continuation, the Respondent confirmed that the Claimant trained separately
from the rest of the team, but affirmed that he was followed by the club’s staff
in order to let him recover from his alleged condition. In addition, the
Respondent stated that the player underperformed and did not follow the
club’s instructions during such trainings.
37.
The Respondent also affirmed that, on 19 April 2016, the Claimant left the
training without permission, in violation of his contractual obligations.
38.
Furthermore, the Respondent stated that, within the framework of the club’s
disciplinary proceedings, the player’s right of defence had been respected, as he
had been represented by lawyers of Country D throughout the entire
proceedings, all the documentation had been translated in English and the
club’s Statute and Disciplinary regulations had been agreed by the Claimant
upon signing the contract (cf. point 3 above).
39.
As to the claimed outstanding salaries, the Respondent argued that the
Claimant never demanded their payment or sent any default notice to the club.
In particular, the Respondent considered that the Claimant “should firstly send a
notice to the Club to pay all due salaries” and, consequently, argued that it had
no debt towards him.
40.
In his replica, the Claimant recalled his previous arguments and insisted that the
club’s President and Sport Director “gave expressly their verbal permission”
before going to Country B and admitted that he did not ask for a written
consent because his relation with them was “amicable and transparent”.
41.
Furthermore, the Claimant stated that he agreed with the club’s Head Coach to
spend the first week of training after his return with “a lighter program”, in
order to recover the physical condition and join the rest of the team from the
second week. Nonetheless, he stressed that this did not happen even after the
positive result of his medical check and that he was forced to train alone
without the support of the club’s staff.
42.
As to the evidence submitted by the Respondent, the Claimant affirmed that he
never received the letter allegedly sent by the club Sport Director (cf. point 34
above) and that he did not refuse to take any MRI scan but, rather, insisted to
do it “urgently (…) to know if injury is recovered and to be part of the team at
the trainings” (cf. point 12 above).
Player A, Country B / Club C, Country D
7
43.
In its duplica, the Respondent insisted on his previous arguments and stated
that he was not able to reach the Claimant while he was in Country B because it
did not know where he was. Furthermore, the Respondent reaffirmed the
inadmissibility of some of the evidences the Claimant submitted, in particular:
the social-app messages and the video-recordings he made during the trainings.
44.
Upon request of the FIFA Administration, the Claimant informed that it did not
conclude any employment contract with other club after the termination of the
contract.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the
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 8 September 2016. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2016 – hereinafter: Regulations), the Dispute Resolution
Chamber would, in principle, be competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between a player of Country B and a club of Country D.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of this Chamber, based on the fact that the Claimant did not
appeal the club’s disciplinary committee decision to terminate the contract and,
thus, did not exhaust the legal remedies available under the club’s disciplinary
regulations.
4.
In this regard, the DRC noted that the Claimant rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
In relation to the above, the Chamber deemed it vital to outline that, pursuant
to the Chamber’s longstanding jurisprudence, and in accordance with art. 22 lit.
b) of the Regulations, the Dispute Resolution Chamber is not an appeal body for
disciplinary decisions. What is more, the DRC pointed out that it is undisputed
that the present matter is an employment-related dispute of an international
dimension.
Player A, Country B / Club C, Country D
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6.
Consequently, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter lacks any merit and that the
Dispute Resolution Chamber is thus competent, on the basis of art. 22 lit. b) of
the Regulations, to deal with the present matter as to the substance.
7.
In continuation, 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 2016), and considering that the present claim was
lodged on 8 September 2016, the 2016 edition of said regulations is applicable
to the matter at hand as to the substance.
8.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
9.
In so doing, the Chamber first took note that, on 25 January 2016, the Claimant
and the Respondent entered into a contract, valid as from the date of signature
until 30 June 2018, i.e. from season 2015/2016 to season 2017/2018, which
entitled the Claimant to the following monthly salary:
a)
EUR 1,500 for season 2015/2016, as of 25 January 2016;
b)
EUR 3,500 for season 2016/2017;
c)
EUR 4,500 for season 2017/2018.
10.
Moreover, the DRC noted that it was undisputed that, on 10 June 2016, the
Respondent, by means of a decision issued by the club’s disciplinary committee,
terminated the contract.
11.
In continuation, the members of the Chamber took note that the Claimant
maintained that he remained absent during the month of March 2016 with the
club’s permission and that the Respondent had no just cause to terminate the
employment contract on 10 June 2016. Therefore, the Claimant sustained that
the Respondent is to be held liable for the early termination of the employment
contract and payment of compensation in addition to the allegedly outstanding
remuneration.
12.
The Chamber further noted that the Respondent, for its part, rejected the claim
and alleged that the Claimant remained absent without the club’s authorisation
“for almost one month” during the month of March 2016 and that, once he
came back, he did not follow the club’s instructions during the trainings. As a
consequence thereof, the Respondent argued that it terminated the contract
with just cause.
Player A, Country B / Club C, Country D
9
13.
Considering the diverging position of the parties, the members of the Chamber
highlighted that the central issue in this dispute was to determine as to whether
the Respondent, by means of the club’s disciplinary committee decision taken
on 10 June 2016, had terminated the employment contract with or without just
cause as well as to decide on the consequences thereof.
14.
Subsequently, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
15.
In this respect, the Chamber first turned its attention to the main arguments
invoked by both the Claimant and the Respondent that the contract was
terminated on 10 June 2016 without and with just cause, respectively, i.e. the
allegedly unauthorised absence of the player at the club during the month of
March 2016 and his alleged refusal to follow the club’s instructions during the
trainings.
16.
As to the first argument, according to the Claimant, he left the club for
rehabilitation in Country B on 8 March and came back on 29 March 2016. In
particular, he argued that he obtained the permission to go to Country B by the
club’s President and Sport Director and, what is more, he kept the club’s Sport
Director and Head Coach informed about his treatment in Country B.
17.
The Respondent refuted that the player was authorised to leave the club and
maintained that it did not have any formal contact with the Claimant as from 1
March 2016 until 9 April 2016. What is more, the Respondent argued that the
Claimant did not inform the club during his absence and sustained that the
communications sent by the Claimant via social apps (i.e. whatsapp, viber),
should not be taken into account, being informal and not allowed by the
contract.
18.
In this regard, the Chamber also noted that, on the one hand, the Claimant
acknowledged that he had not requested in writing the Respondent’s
authorisation to leave the club, allegedly because of the “amicable and
transparent” relation he had with the President and the Sport Director of the
club. On the other hand, the members of the Chamber took into consideration
that the Respondent did not request to the Claimant to come back during his
absence and did not contest that the Claimant sent messages via social apps to
the club’s representatives but, rather, that such kind of messages could not be
taken into account.
Player A, Country B / Club C, Country D
10
19.
In view of the above, the Chamber went on to deliberate as to whether the
aforementioned player’s absence, which is invoked by the Respondent as the
ground for the unilateral termination of the employment contract, was
unauthorised and can be considered as a just cause for the Respondent to
prematurely terminate the employment contract on 10 June 2016.
20.
In this respect, the members of the Chamber, on account of the abovementioned considerations, concurred that the Respondent, via his
representatives, had been duly informed of the Claimant’s request to leave for
rehabilitation in Country B and of his treatment. The members of the Chamber
were comforted with this conclusion also by the fact that the Respondent’s
representatives replied positively to the Claimant’s messages which, even if sent
via social apps, were indeed received by them. What is more, the contract does
not provide particular modalities for the communications between the player
and the club. In any case, the DRC emphasised that at no point the Respondent
denied that the whatsapp messages were in fact exchanged between the player
and the club’s President and Sport Director. What is more, from said messages it
can clearly be observed that the Respondent was not only informed of the
player’s treatment in Country B, but that it actually agreed to it.
21.
On account of the aforementioned considerations, the members of the
Chamber unanimously concluded that indeed the Claimant had received the
Respondent’s permission to leave the club for rehabilitation during the month
of March 2016, which was accepted by the latter.
22.
As to the second argument, i.e. the alleged Claimant’s refusal to follow the
club’s instructions during trainings, the members of the Chamber first referred
to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a
right on the basis of an alleged fact shall carry the respective burden of proof.
The application of said principle led the members of the Chamber to conclude
that it was up to Respondent to prove that the Claimant allegedly refused to
follow the club’s instructions during trainings. However, the members of the
Chamber concurred that the Respondent did not submit sufficient evidence in
order to substantiate such allegation.
23.
Moreover, the members of the Chamber referred to the Chamber’s wellestablished jurisprudence, in accordance with which only a breach or
misconduct which is of certain severity would justify the termination of a
contract. With this in mind, the Chamber was of the opinion that, even if the
alleged behaviour of the Claimant would have occurred, the alleged refusal to
follow the club’s instructions during trainings, per se, did not allow the
Respondent to prematurely terminate the employment contract with the
Claimant, since there would have been more lenient and proportionate
measures to be taken (e.g., among others, the imposition of a fine) in order to
assure the player’s fulfilment of his contractual duties.
Player A, Country B / Club C, Country D
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24.
In view of all the aforementioned considerations, the Chamber concluded that
the Respondent had no just cause to unilaterally terminate the employment
contract on 10 June 2016 and, therefore, decided that the Respondent is to be
held liable for the early termination of the employment contact without just
cause.
25.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract without
just cause by the Respondent.
26.
First of all, the members of the Chamber concurred that the Respondent must
fulfil its obligations as per employment contract up until the date of
termination of the contract in accordance with the general legal principle of
“pacta sunt servanda”.
27.
In this respect, the members of the Chamber noted that the Respondent, on 16
June 2016, imposed a fine on the Claimant. However, they pointed out that
such fine was imposed only after that the Respondent terminated the contract.
Moreover, pursuant to art. 12 par. 3 of the Procedural Rules, the Respondent
did not provide sufficient evidence that the alleged conduct of the player
occurred. What is more, from the documentation on file it cannot be
established with absolute certainty that the procedural rights of the player were
respected during the disciplinary proceedings.
28.
Bearing in mind the above, the members of the Chamber referred to the
longstanding jurisprudence of the DRC, according to which 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.
Thus, the members of the Chamber concluded that the fine in question shall not
be taken into account in the calculation of the amounts due to the Claimant.
29.
Consequently, on account of the aforementioned considerations, the Chamber
decided that the Respondent is liable to pay to the Claimant the remuneration
that was outstanding at the time of the termination on the contract by the
Respondent on 10 June 2016, i.e. the amount of EUR 4,500, consisting of the
monthly salaries from March to May 2016.
30.
In addition, taking into consideration the 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 Claimant interest at the rate of
5% p.a. on the outstanding amount of EUR 4,500 as of 10 June 2016, as
requested by the Claimant.
31.
In continuation, the Chamber decided that, taking into consideration art. 17
par. 1 of the Regulations, the Claimant is entitled to receive from the
Player A, Country B / Club C, Country D
12
Respondent compensation for breach of contract in addition to the outstanding
remuneration on the basis of the relevant employment contract.
32.
Subsequently, 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 under the existing
contract and/or the new contract, the time remaining on the existing contract
up to a maximum of five years, and depending on whether the contractual
breach falls within the protected period.
33.
In application of the relevant provision, the Chamber held that it first of all had
to clarify 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.
34.
As a consequence, the members of the Chamber determined that the amount of
compensation in the present matter had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber
recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of
compensation payable. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body. In this regard, the Dispute
Resolution Chamber emphasised beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a
case-by-case basis taking into account all specific circumstances of the respective
matter.
35.
In order to estimate the amount of compensation in the present case, the
members of the Chamber first turned their attention to the remuneration and
other benefits due to the Claimant under the existing contract and/or the new
contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording
of art. 17 par. 1 of the Regulations allows the Chamber to take into account
both the existing contract and the new contract, if any, in the calculation of the
amount of compensation.
36.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment
Player A, Country B / Club C, Country D
13
contract for the remaining duration until 30 June 2018 and concluded that the
Claimant would have received a total remuneration of EUR 97,500,
corresponding to the monthly salaries from June 2016 to June 2018.
37.
In continuation, the Chamber verified as to whether the 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 mitigate his damages.
38.
However, the members of the Chamber took note that, after the termination of
the contract by the Respondent on 10 June 2016, the Claimant did not enter
into other employment contract with any other club.
39.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 97,500 to the Claimant as compensation for breach of
contract in the case at hand, which is considered as fair and reasonable.
40.
In continuation, and with regard to the player's request for interest, the
Chamber decided that the player is entitled to 5% interest p.a. on said amount
as of 8 September 2016.
41.
In addition, as regards the claimed legal expenses, the Chamber referred to art.
18 par. 4 of the Procedural Rules as well as to its long-standing and 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
Claimant’s request relating to legal expenses.
42.
The members of the Chamber concluded their deliberations on the present
matter by rejecting any further claim lodged by the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 4,500 plus 5% interest p.a. as from 10 June 2016 until the date
of effective payment.
4.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date
of notification of this decision, compensation for breach of contract in the
Player A, Country B / Club C, Country D
14
amount of EUR 97,500 plus 5% interest p.a. as from 8 September 2016 until the
date of effective payment.
5.
In the event that the amounts plus interest due to the Claimant in accordance
with the above-mentioned numbers 3. and 4. are not paid by the Respondent
within the stated time limits, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
6.
Any further claim lodged by the Claimant is rejected.
7.
The Claimant is directed to inform the 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 m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receipt of notification of this decision and
shall contain all the elements in accordance with point 2 of the directives issued by
the CAS, a copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a
brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf.
point 4 of the directives). The full address and contact numbers of the CAS are the
following:
Court of Arbitration for Sport
Avenue de Beaumont 2
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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
15