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 ov arov (Rus s ia), member
Jérôm e Perlem uter (France), member
on the claim presented by the player,
Play er A, Country B
as Claimant / Counter-Respondent
against the club,
Club C, Country D
as Respondent / Counter-Claimant
and the club,
Club E, Country F
as Intervening Party
regarding an employment-related dispute
between the parties
I. Facts of the cas e
1.
On 16 January 2016, the player of Country B, Player A (hereinafter: the player or
Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent),
concluded an employment contract, valid as from 17 January 2016 until ’the end of
2019’ (hereinafter: the contract).
2.
According to article 5 of the contract, the player was entitled to receive the total
amount of EUR 600,000 for the entire period of the contract, payable as follows:
an instalment of EUR 25,000, due ‘after the receiving of the ITC’;
an instalment of EUR 35,000, due ‘end of the February 2016’;
the amount of EUR 90,000, payable in 10 equal instalments, due ‘starting
March 2016 ending December 2016’;
the amount of EUR 450,000, payable in 36 equal instalments, due ‘starting
January 2017 ending December 2019’.
3.
Article 5 par. 2 of the contract holds the following clause: ‘Reward for achieved
results in the national championship, Cup of Country D and Continental Cup
competitions based on the decision of the Board of Club C which is applied for all
professional football players of Club C: […] EUR 5,000 for the first place in Cup of
Country D […] Rewards will be calculated according to the player’s appearances in
correspondent competitions’.
4.
Article 5 par. 3 and 4. of the contract contain the following clauses: ‘3. Apartment
and car on use, 4. Two return flight tickets City of Country D – Country B per year’.
In addition, said article stipulates: ‘Incomes determined in this article are presented
in euros, net amount. Payments will be executed in equivalent amounts in currency
of Country D, average quotation of National Bank of Country D on the payment
day, on the banking account of the player in Country D’.
5.
On 20 October 2016, the player lodged a claim before FIFA against the club,
claiming outstanding remuneration and compensation for breach of contract to be
paid by the club, broken down as follows:
Outstanding remuneration in the total amount of EUR 22,145, as follows:
EUR 20,032, plus 5% interest p.a. as from 7 October 2016, corresponding to two
monthly salaries for July and September 2016, in the amount of EUR 9,000
each, as well as the amount of EUR 2,032 corresponding to the period between
1 and 7 October 2016;
EUR 2,113, plus 5% interest p.a. as from 7 October 2016, as payment of the
agreed amount of ‘housing/rental amounts‘, corresponding to 4 monthly
payments of EUR 500 each related to the period between June and September
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Player A, Country B / Club C, Country D / Club E, Country F
2
2016, as well as EUR 113 corresponding to the period between 1 and 7 October
2016.
Compensation for breach of contract in the total amount of EUR 540,000, as follows:
EUR 90,000, plus 5% interest p.a. as from 7 October 2016, as the residual value
of the contract in the period between March and December 2016,
corresponding to 10 instalments of EUR 9,000 each;
EUR 450,000, plus 5% interest p.a. as from 7 October 2016, as the residual value
of the contract in the period between January 2017 and December 2019,
corresponding to 36 instalments of EUR 12,500 each.
Furthermore, the player requested that sporting sanctions shall be imposed on the
club, as well as that the club is obliged to pay the legal fees of the player.
6.
In his claim, the player explains that, as from the start of the contract, the club was
always late with the payments of the amounts due under the contract, arguing that
‘the Respondent systematically accumulated the two months’ delay in salary
payments and in order to prevent the possible negative consequences of such
violations, including the potential termination of the contract, the Respondent ‘paid
only one salary shortly before the expiration of the two months’ period’.
7.
As a result, the player argues that on 3 October 2016, he had no other choice than
to put the club in default, providing it with a deadline until 7 October 2016 ‘to
cover the overdue salary payments and housing/rental allowances in full […]
Otherwise, the Claimant reserved his rights for legal action and termination of the
employment relationship’.
8.
According to the player, the club did not comply with its financial obligations until 7
October 2016, as a result of which, on 7 October 2016, he unilaterally terminated
the contract with immediate effect. The player further points out that the club
‘grossly violated the contract’ and that he had a just cause to terminate it.
9.
In its reply dated 21 November 2016, the club first of all states that the player’s
allegations about the alleged late salary payments are not true and explains that
the contract, with the exception of the first two payments of EUR 25,000 and EUR
35,000, does not foresee any exact due dates for the payments. Moreover, the club
explains that the player’s receivables in relation to the apartment and the car, as per
article 5 par. 3 of the contract, amount to EUR 500 per month. In addition, the club
explains that as per article 110 of the Labour Law of Country D, it can be established
that salary payments should be made ‘at least once a month, and until the end of
the current month, at the latest for the preceding month’.
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Player A, Country B / Club C, Country D / Club E, Country F
3
10.
In view of the foregoing, the club explains that it paid the total amount of EUR
114,000 to the player, by means of several payments, some of them ‘even
prematurely sometimes’:
11.
EUR 25,000 on 22 January 2016;
EUR 35,000 on 26 January 2016;
EUR 9,000 as salary for March 2016 on 25 February 2016;
EUR 9,000 as salary for April 2016 on 25 March 2016;
EUR 9,000 as salary for May 2016 on 25 April 2016;
EUR 9,000 as salary for June 2016 on 16 May 2016;
EUR 9,000 as salary for July 2016 on 25 July 2016;
EUR 9,000 as salary for August 2016 on 5 September 2016.
Furthermore, the club points out that it paid the player some ‘premiums’, by means
of two payments, the first one in the amount of EUR 1,000 made on 7 March 2016,
and the second one in the amount of EUR 3,333 made on 13 May 2016. In addition,
the club argues that in relation to the apartment it rented for the player, on 22
March 2016, ‘it paid one rent directly to the owner’. Moreover, the club argues that
it paid a total amount of EUR 4,000 to the player as costs for the apartment, as
follows:
EUR 2,000 on 13 July 2016;
EUR 2,000 on 12 September 2016.
12.
As a result, the club argues that for the period between January and September
2016, it paid the player all the accommodation allowances he was entitled to. In
addition, the club explains that the car ‘was always paid by the sponsors’.
13.
In relation to the default letter sent by the player on 3 October 2016, the club
explains that at that moment, only the salary for September 2016 was outstanding,
as of 30 September 2016, as well as that under law of Country D ’not one salary was
due’. According to the club, it duly received the player’s default letter, but ‘taking
into consideration that only one monthly salary was outstanding since three days,
Respondent had no motive or reason to contest such an obviously wrong
statement’.
14.
Moreover, the club argues that the player failed to attend the training sessions as
from 3 October 2016, as ‘on the very early morning of 3 October 2016’, he was
stopped by the police ‘because he drove his car under influence of alcohol’.
15.
As a result of the foregoing, the club holds that on 3 October 2016, it started
disciplinary proceedings against the player, for violation of the internal Disciplinary
Code of Club C. On 6 October 2016, the club alleges to have invited the player to
reply to the disciplinary proceedings started against him, by no later than 17
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Player A, Country B / Club C, Country D / Club E, Country F
4
October 2016. However, according to the club, the player had already left Country
D, as a result of which the club sent the documents to the player’s legal
representative.
16.
The club further argues that the player obviously could not attend the training on 3
October 2016, ‘as he was at the Police station sobering up’, but that he also missed
the training sessions the following days, until 7 October 2016. In this respect, the
club points out that on 3 October 2016, its sports director immediately called the
player, after he got out of detention and informed him that he should go to the
club’s training on 4 October 2016. According to the club, however the player never
returned to the club.
17.
As a result of the foregoing, the club holds that the player had no just cause to
terminate the contract on 7 October 2016 and it lodged a counterclaim against him,
claiming the payment of EUR 887,500, plus 5% interest p.a. as from 7 October 2016,
specified as follows:
the amount of EUR 496,500 as residual value of the contract ‘until the expiry of
the contract’;
the amount of EUR 325,000 as ‘non-amortized transfer fee’, according to the
club corresponding to (39/48) of the total value of the contract, as in 39 months
out of the 48 of the total contractual duration, the player did not train or play
for the club;
EUR 75,000 as ‘indemnity amount’ in line with ‘the specificity of the sport’,
corresponding to 6 monthly payments of EUR 12,500 each;
minus the amount of EUR 9,000, to which the player is still entitled as salary for
September 2016.
Furthermore, the club requested for sporting sanctions to be imposed on the player,
as well as that the player is ordered to pay the club’s legal fees.
18.
In his replica and reply to the counterclaim, the player denies all the club’s
allegations and insists on the fact that he had a just cause to terminate the contract,
due to the club’s failure to timely pay him the amounts he was entitled to.
Moreover, the player argues that the club did focus on several aspects of his private
life, which are of no importance to the matter at hand, in order to confuse the DRC.
19.
In this respect, the player contests the payment instructions submitted by the club
and submits a copy of a bank statement related to an account referred to as
‘Foreign currency savings – credit card’ with number XXX and holding the player’s
name, ‘reflecting the actual income on the account of the player’. Furthermore, the
player argues that said bank account was ‘the only effective bank account, hence,
all the payments made by Club C arrived only there’. According to the bank
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Player A, Country B / Club C, Country D / Club E, Country F
5
statement, the player argues to have received the total amount of EUR 111,000,
specified as follows:
EUR 25,000 on 22 January 2016, paid by the club in cash to the player, who
deposited said amount on his bank account the same day;
EUR 35,000 on 26 January 2016, paid by the club in cash to the player, who
deposited said amount on his bank account the same day;
EUR 8,985 on 25 February 2016;
EUR 1,000 on 7 March 2016;
EUR 8,690 on 25 March 2016;
EUR 9,000 on 25 April 2016;
EUR 3,330 on 13 May 2016;
EUR 9,000 on 16 May 2016;
EUR 1,995 on 13 July 2016;
EUR 9,000 on 25 July 2016.
20.
In view of the foregoing, the player contests to have received the alleged payment
of the amount of EUR 9,000 on 5 September 2016. Also, the player confirms that on
7 September 2016, he received an amount of EUR 4,090, but ‘this payment was not
made by Club C but by a third party’.
21.
Subsequently, the player argues that as per article 5 par. 2 of the contract, he was
entitled to a bonus of EUR 5,000 for winning the Cup of Country D, however the
club never paid him said amount.
22.
In relation to the monthly amount of EUR 500, which the club holds to have paid to
the player in relation to the costs for an apartment, the player denies to have
received any of these amounts. In this respect, the player explains that the payments
the club alleges to have made on 13 July and 12 September 2016 in the total
amount of EUR 4,000, correspond to a ‘match bonus’. According to the player, it is
‘remarkable’ that the club, who was obliged to pay monthly an amount of EUR 500
for housing allowance, only paid these amounts ‘for the first time after seven
months the player was living in the apartment, and a second one after nine
months.’.
23.
Moreover, the player explains that based on the document provided by the club in
its reply to the claim, it can be seen that ‘the rent payments were made on different
dates and allegedly through cash payment’.
24.
As a result of the foregoing, the player concludes that he had a just cause to
terminate the contract and reiterates his initial claims. Furthermore, the player
explicitly requests the rejection of the counterclaim of the club, as in any case, no
compensation is due by him to the club. In this respect, the player explains that ‘the
salaries a club is no more obliged to pay to the player for the remaining duration of
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Player A, Country B / Club C, Country D / Club E, Country F
6
the contract shall be deducted from the amount of compensation asked’. The
outcome of this calculation would in this specific case be EUR 325,000 (nonamortized transfer fee) minus EUR 496,500 (remaining value of the contract),
leading to a negative amount of EUR 171,500. As a result, the player holds that he
cannot be held liable to pay any amounts to the club.
25.
In its duplica, the club asks for the rejection of all the player’s claims and explains
that in relation to the incident of 3 October 2016 it acted as ‘the conscientious
employer’. Moreover, the club points out that as per article 5 par. 4 of the contract
all amounts due to the player were paid in the currency of Country D, to the
player’s ‘account in the currency of Country D in Country D’ with account number
XXX, however that the player ‘opened additionally a foreign currency account, to
which the bank could transfer the paid currency of Country D into euros […]’, with
account number XXX. In this respect, the club argues that the extract from the bank
account the payer submitted, belongs to his ‘foreign currency account – credit card,
and not from his account in the currency of Country D, to which the Respondent
made the payments of all the agreed compensation’.
26.
With regard to the payments, the club points out that the player only did not
confirm the payment of the salary for August 2016. The club however argues that
said payment was made on 6 September 2016, after several administrative problems
occurred on 5 September 2016. In this respect, the club points out that it
accidentally paid the player’s salary for August 2016 to another player (Player G),
but that on 6 September 2016, Player G gave the ‘Banking company of Country D
a.s. his consent to transfer the money from his bank account to the account of the
Claimant’. As a result, on 6 September 2016, the amount of 1,111,746.60, in the
currency of Country D corresponding to EUR 9,000, was paid to the player’s ‘account
in the currency of Country D’.
27.
In relation to the bonus of EUR 5,000 for winning the Cup of Country D, the club
explains said bonus was introduced by means of a board decision dated 9 July 2015,
and that it would be calculated in view of the player’s appearances in the cup
matches. As the player appeared in 4 matches, the club holds that the player was
entitled to EUR 3,333, paid to him on 13 May 2016.
28.
Further, regarding the accommodation allowance the club reiterates its argument
that all these costs were covered by means of the payment of EUR 2,000 on 13 July
2016 and EUR 2,000 on 12 September 2016.
29.
In conclusion, the club reiterates its claims and further specifies that the player at
least has to pay the ‘non-amortized transfer fee’ in the amount of EUR 325,000.
Further, the club points out that it bought the player in the winter transfer window
of the season 2015/2016 for an amount of EUR 400,000 from the club of Country H,
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Player A, Country B / Club C, Country D / Club E, Country F
7
Club L, and that it would not have had any intention to terminate the contract of
‘one of the top earners’.
30.
After being requested to do so, the player informed FIFA that he remained
unemployed ‘for prolonged period of time’ and that only on 23 February 2017, he
signed a new contract with the club of Country F, Club E, valid between 23 February
2017 and 30 November 2017, according to which he was entitled to receive a
monthly salary of EUR 820.
31.
Although being invited to do so, Club E failed to submit its reply to all the
documentation in the matter at hand.
II. Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 20 October
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 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2016) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a player of Country B and a club of Country D,
with the involvement of a club of Country F.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2016), and considering that the present claim was lodged on 20 October 2016, the
2016 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. 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,
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Player A, Country B / Club C, Country D / Club E, Country F
8
arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
In this respect, the members of the DRC took note that on 16 January 2016 an
employment contract was concluded between the player and the club for the
period as from 17 January 2016 until ’the end of 2019’.
6.
In continuation, the Chamber acknowledged that it had been uncontested by the
parties that the player prematurely terminated the employment contract on 7
October 2016, by means of a termination letter.
7.
Within this context, the members of the DRC took note that the player considered
the contract as terminated with just cause as from 7 October 2016, based on the
alleged fact that the club apparently had a debt of EUR 22,145 towards him,
consisting of two monthly salaries and more than four monthly payments of
housing allowances.
8.
On the other hand, the Chamber acknowledged the club’s argument, according to
which the player prematurely terminated the contract without just cause.
9.
In this regard, the members of the Chamber noted that the club confronted the
player’s argument on the existence of the aforementioned debt in the amount of
EUR 22,145 since, according to the club, on 7 October 2016, only the salary for
September 2016, in the amount of EUR 9,000, remained outstanding for a couple of
days. Furthermore, the club pointed out that the player had two bank accounts, one
so-called the ‘account of the currency of Country D’ and one ‘foreign currencyaccount’ and that it only made payments to the account of the currency of Country
D.
10.
Moreover, the members of the Chamber further took into account that the player
did not contest that the club made several payments to him as from 22 January
2016, but that he only contested the nature of said payments and the payments the
club alleges to have made in September 2016. What is more, the player denies the
club’s allegations as to the alleged different bank accounts and states that the club
only used the foreign currency-account, to make payments to him.
11.
In view of aforementioned dissent between the parties in respect of the basic
question as to which amounts the player was entitled to as per the signed contract
were actually paid by the club, the members of the Chamber firstly 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 the said principle in the present matter led the members of the
Chamber to conclude that it was up to the club to provide documentary evidence of
the payment of the remuneration claimed as outstanding by the player.
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Player A, Country B / Club C, Country D / Club E, Country F
9
12.
In this respect, the Chamber wished to point out that, regarding the alleged
outstanding salaries, the player states that, although said amounts had already
fallen due, his salaries for July and September 2016 remained unpaid which
circumstance is contested by the club.
13.
In relation to said allegedly unpaid salaries, the club explains that it paid the salary
for July 2016 on 25 July 2016, and submitted a payment instruction for an amount
of EUR 9,000, to be paid on 25 July 2016 to the player. In relation to said alleged
payment, the members of the Chamber noted that in his replica, the player
confirmed to have received an amount of EUR 9,000 on 25 July 2016, without
further contesting the club’s arguments. Based on the foregoing, and irrespective of
which bank account said payment was made to, the members of the Chamber had
no other choice than to establish that the player, on 25 July 2016, had received the
salary for July 2016.
14.
What is more, regarding the salary for September 2016, the club explained that said
salary indeed remained outstanding on 7 October 2016, the day of the termination
of the contract by the player, however only because this salary payment had not yet
fallen due as per employment law of Country D.
15.
In this respect, the members of the Chamber noted that the contract does not
specify a due date on which the club should pay the player’s salary, and that, in line
with its well-established jurisprudence, without a provision to the contrary, the
monthly salaries are presumed to fall due on the last day of the month. Turning to
the matter at hand, the Chamber established, that the salary for September 2016,
had fallen due on 30 September 2016 the latest. Moreover, the Chamber wished to
point out that when deciding a dispute before the DRC, FIFA’s regulations and the
DRC’s jurisprudence prevail over national law, and thus the club’s allegation that
based on employment law of Country D, the September 2016 was not yet due, could
not be followed. Based on the foregoing circumstances, the members of the
Chamber deemed that on 7 October 2016, the salary for September 2016 had
indeed remained outstanding, for a total of 7 days.
16.
In addition, the members of the Chamber turned their attention to the housing
allowances in the total amount of EUR 2,113 and related to the period between 1
June and 7 October 2016, which according to the player remained outstanding on 7
October 2016. The club, on the other hand, had contested such allegation and
provided two payment instructions, based on which it concludes that it paid all the
housing allowances the player was entitled to until the date of termination of the
contract. In this respect, the club points out that it paid the player the total amount
of EUR 4,000 (i.e. 8 payments of EUR 500 each), in two instalments of EUR 2,000
each (cf. point I./11. above). The Chamber also noted that, even though a specific
amount referring to house allowances is not defined in the contract, the parties
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Player A, Country B / Club C, Country D / Club E, Country F
10
appear to agree that this payment amounted of EUR 500 per month. In addition, it
his replica, the player confirmed that he received the total amount of EUR 4,000,
however pointed out that said amount was related to alleged match bonuses he
was entitled to.
17.
As to the player’s argument that the two payment of EUR 2,000 each were related
to match bonuses and not to housing allowances, the Chamber noted that the
player did not substantiate his defence, as he did not present any documentary
evidence of his alleged entitlement to the such bonuses.
18.
What is more, the Chamber noted that the player, in his replica, only explained that
he should have been entitled to a bonus in the amount of EUR 5,000 for winning
the Cup of Country D, which amount was however not claimed by him in his claim
lodged on 20 October 2016. Irrespective of the foregoing, the Chamber noted that
the club, on the other hand, had submitted documentary evidence that the player
was only entitled to a bonus in the amount of EUR 3,333 and that it timely paid said
amount to the player.
19.
Consequently, the DRC considered that the player had not sufficiently substantiated
this part of his claim to the Chamber’s satisfaction, as he did not present any
conclusive documentary evidence, which could corroborate that the two payment of
EUR 2,000 each were only related to match bonuses, and therefore could not be
considered as housing allowances. As a result, the members of the Chamber were of
the opinion that the two payment instructions submitted by the club and related to
the above-mentioned payments, up to the total amount of EUR 4,000, are to be
regarded as the payment of housing allowances. In conclusion, the Chamber
deemed that at the day of the termination of the contract, no housing allowances
were outstanding.
20.
In view of all the above, the members of the Chamber concluded that on the day
the contract was terminated by the player, 7 October 2016, only one monthly salary
in the amount of EUR 9,000, i.e. the salary for September 2016, had been
outstanding for 7 days. In this respect, the Chamber deemed it fit to point out that,
in general, that is, regardless of specific circumstances surrounding a matter, solely
the non-payment of one monthly remuneration cannot be considered as a just
cause for a player to unilaterally terminate the contract 7 days after such amount
fell due. In such situations, there would have been other measures to be taken by
the player, in order to find a remedy to the situation.
21.
Overall, the Chamber decided that on 7 October 2016, the player had no just cause
to unilaterally terminate the employment relationship between him and the club
and that, therefore, the player had breached the employment contract without just
cause.
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Player A, Country B / Club C, Country D / Club E, Country F
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22.
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 player.
23.
In doing so, the DRC first of all established that, in accordance with art. 17 par. 1 of
the Regulations and in view of the counterclaim lodged by the club, the player is
liable to pay compensation to the club. Furthermore, in accordance with art. 17 par.
2 of the Regulations, the Chamber established that the player’s new club, i.e. Club E,
shall be jointly and severally liable for the payment of such compensation.
24.
Subsequently, the members of the Chamber 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 a player under an existing contract and/or the new contract(s),
the time remaining on the existing contract up to a maximum of five years as well
as the fees and expenses paid or incurred by the former club (amortised over the
term of the contract) and whether the contractual breach falls within a protected
period. In addition, the DRC recalled that the list of objective criteria is not
exhaustive and that the broad scope of criteria indicated tends to ensure that a just
and fair amount of compensation is awarded to the prejudiced party.
25.
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 either contractual party in the event of breach of
contract. Upon careful examination of said contract, the members of the Chamber
assured themselves that this was not the case in the matter at stake.
26.
The Chamber further recalled that the club had claimed compensation in the
amount of EUR 887,500, calculated on the basis of the residual value of the
contract, as well as the ‘non-amortized transfer fee’ and an additional indemnity
amount in relation to the specificity of the sport.
27.
In the calculation of the amount of compensation due by the player, the Chamber
firstly turned its attention to the remuneration and other benefits due to the player
under the existing contract and/or any new contract(s), a criterion, which 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 any new
contract(s) in the calculation of the amount of compensation.
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Player A, Country B / Club C, Country D / Club E, Country F
12
28.
Following the documentation provided by the parties, it appears that in accordance
with the contract, which was to run for thirty-nine more months at the moment
when the breach of contract occurred, the player was to receive a total
remuneration equalling to EUR 477,000. On the other hand, the value of the new
employment contract, concluded between the player and Club E over the
aforementioned period of time, appears to amount to EUR 31,980. On the basis of
the aforementioned financial contractual elements at its disposal, the Chamber
concluded that the average of the remuneration of the player with his former and
his new club during the remaining contractual period of time amounted to EUR
254,490.
29.
The members of the Chamber then turned their attention to the essential criterion
relating to the fees and expenses paid by the club for the acquisition of the player’s
services insofar as these have not yet been amortised over the term of the relevant
contract. The Chamber recalled that a transfer compensation of EUR 400,000 had
been paid by the club to the club of Country H, Club L, for the player‘s transfer,
documentation of which has been presented by the club. According to article 17
par. 1 of the Regulations, this amount shall be amortised over the term of the
relevant employment contract. As stated above, the player would still be bound to
the club for thirty-nine further months when he terminated the relevant contract,
which was signed for a total duration of forty-eight months (i.e. 4 years). As a result
of the player’s breach of contract on 7 October 2016, the club has thus been
prevented from amortising the amount of EUR 325,000, relating to the transfer
compensation that it paid in order to acquire the player’s services, which, at that
time, the club counted to be able to make use of during forty-eight months.
30.
Based on the foregoing, the Chamber considered that the basis for the amount of
compensation for breach of contract without just cause to be paid by the player to
the club is composed of the amount of EUR 325,000 related to non-amortised
expenses incurred by the club when engaging the services of the player, as well as
the amount of EUR 254,490 being the reflection of the average remuneration and
other benefits due to the player under the previous and the new contract, leading
to a total amount of EUR 579,490.
31.
In sum, the Chamber decided that the player should pay compensation in the
amount of EUR 579,490, plus 5% interest p.a. as of 21 November 2016, i.e. the date
of the club’s counterclaim, until the effective date of payment to the club, as
compensation for breach of contract without just cause. Moreover, in strict
application of art. 17 par. 2 of the Regulations, the Intervening Party is jointly and
severally liable for the payment of the relevant compensation.
32.
In continuation, the members of the Chamber noted that that the club had not yet
paid the player his salary for the month of September 2016, corresponding to an
amount of EUR 9,000, as well as the salary for the period between 1 October and 7
_______________________________________________________________________________________________________________
Player A, Country B / Club C, Country D / Club E, Country F
13
October 2016, amounting to EUR 2,032, as established by the parties in the contract.
The Chamber decided that, in accordance with the general legal principle of “pacta
sunt servanda”, the player is entitled to those aforementioned payments. The
Chamber concurred that, therefore, the club shall pay the amounts of EUR 11,032 to
the player.
33.
Moreover, taking into account the player’s request as well as its longstanding
jurisprudence, the Chamber decided that the club must pay to the player interest of
5% p.a. on the amount of EUR 11,032 as from 8 October 2016 until the date of
effective payment.
34.
Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the parties.
III. Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / CounterRespondent w ithin 30 day s as from the date of notification of the present
decision, outstanding remuneration in the amount of EUR 11,032, plus 5% interest
p.a. as from 8 October 2016 until the date of effective payment.
3.
In the event that the amount due to the Claimant / Counter-Respondent under
point 2. 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.
4.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
5.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittance
under point 2. above is to be made and to notify the Dispute Resolution Chamber of
every payment received.
6.
The counter-claim of the Respondent / Counter-Claimant is partially accepted.
7.
The Claimant / Counter-Respondent has to pay to the Respondent / CounterClaimant, w ithin 30 day s as from the date of notification of the present decision,
compensation for breach of contract in the amount of EUR 579,490, plus 5%
interest p.a. as from 21 November 2016 until the date of effective payment.
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Player A, Country B / Club C, Country D / Club E, Country F
14
8.
The Intervening Party, Club E, is jointly and severally liable for the payment of the
amount mentioned under point 7.
9.
In the event that the amount due to the Respondent / Counter-Claimant under
point 7. 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.
10.
Any further claim lodged by the Respondent / Counter-Claimant is rejected.
11.
The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent immediately and directly of the account number to which the
remittance under point 7. 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 (CAS)
Avenue de Beaumont 2
CH-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
Enclosed: CAS directives
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Player A, Country B / Club C, Country D / Club E, Country F
15