Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 December 2012,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Philippe Diallo (France), member
on the claim presented by the club,
Club A, from country G
as Claimant/Counter-Respondent
against the player,
Player R, from country S
as Respondent/Counter-Claimant
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 12 January 2006, Player R, from country S (hereinafter: player or
Respondent/Counter-Claimant), and the Club A, from country G (hereinafter: club
or Claimant/Counter-Respondent) signed an employment contract valid as from
the date of signature until 30 December 2008.
2.
In accordance with the employment contract, the player was to receive inter alia
the following benefits:
a. Monthly salary of EUR 684 (12 x per year);
b. Christmas bonus of EUR 684;
c. Easter bonus of EUR 342;
d. Vacation bonus of EUR 342;
e. The total amount of EUR 394,035 payable in 24 instalments, which are
specified in the employment contract, the final ones (21 st to 24th
instalments) amounting to EUR 18,005 each falling due on 30 May 2008,
30 July 2008, 30 August 2008, and 30 September 2008, respectively;
f. Use of a house and of a car.
3.
In February 2009, the player signed an employment contract with the Club B from
country I, whereas, in October 2011, the country I Football Federation informed
FIFA that Club B is no longer affiliated to it.
4.
On 6 October 2008, the club lodged a claim against the player in front of FIFA
maintaining that the player had acted in breach of the employment contract
without just cause due to his long-lasting absence without its authorisation as
from 7 July 2008 until 19 September 2008 and that, therefore, he is liable to pay
compensation.
5.
The club explains that, in July 2007, the player returned to country S with its
authorisation in order to receive (psychological) medical treatment. Furthermore,
according to the club, in October 2007, the player indicated that he wished to be
transferred to another club in country S, but subsequently, on 27 November 2007,
the player did return to the club to resume his duties.
6.
According to the club, the player then rendered his services to the club until the
end of the 2007-08 season.
7.
The club further holds that, in spite of having been formally summoned to resume
duties at the club as of 7 July 2008, the player did not return to the club until 19
September 2008 without having given any reason or justification for his absence.
Club A, from country G / Player R, from country S
Page 2 of 16
8.
The club deems that the long lasting absence of a player from his club without
authorisation and without just cause constitutes an unjustified breach of contract.
9.
The club points out that it had fully complied with its financial obligations
towards the player and no monies were due to him when the 2007-08 season had
come to an end.
10.
Furthermore, the club asserts that the player’s absence resulted in a delay in its
transfer planning for the 2008-09 season and it was finally forced to replace him
with another player.
11.
The club further submits that the absence of the player prevented the club from
counting on his high quality services for the remaining contractual period causing
the club a significant sporting damage.
12.
In addition, the club submits that it suffered a significant financial loss, as, on 27
June 2008, it received an offer from Club C, from country J, for the transfer of the
player, which offer it rejected, as the club was counting on the player’s services
until the expiration of the employment contract.
13.
The club has specified its claim for compensation and sporting sanctions against
the player, including the amendment presented by the club on 19 April 2011, as
follows:
a. EUR 50,000 as lucrum cessans for the non-transfer of the player to Club C.
In this context, the club emphasises that it would have entered into
negotiations with Club C if the player had indicated that he was not
willing to resume duty or wished to terminate the employment contract.
Alternatively, the club asks that this amount be taken into consideration
for the calculation of the value of the player’s services that the club was
deprived of;
b. EUR 43,553 for the costs of acquisition of another player on the basis of
4,5 months in order to fulfil its obligation to mitigate damages.
Alternatively, the club asks that this amount be taken into consideration
in connection with the specifity of sport;
c. The remaining value of the employment contract, i.e., the 3 instalments
of EUR 18,005 each falling due as from 30 July 2008 until 30 September
2008 and the gross monthly salaries of July and August 2008 [EUR 711.83
each] as well as of September to December 2008 [EUR 733.25 each] and
the Christmas bonus of EUR 733.25;
d. EUR 100,000 reflecting the sports related damage in the light of the
specificity of sport;
e. Interest at the rate of 5% p.a.;
Club A, from country G / Player R, from country S
Page 3 of 16
f. Costs incurred in relation to the proceedings in front of the Dispute
Resolution Chamber amounting to EUR 15,000;
g. Impose sporting sanctions on the player for breach of contract within the
protected period.
14.
The player, for his part, fully rejects the claim maintaining that his absence was
justified for medical reasons and he presented a counterclaim against the club.
15.
The player points out that he suffered from psychological depressions and had
periodic attacks of clinical depressions, which circumstance was known and
accepted by the club as early as in 2007. In this respect, the player presented, inter
alia, a letter dated 19 September 2007 by means of which the club informed him,
inter alia, that it would continue to respect its financial obligations towards the
player until he would be fit again to reintegrate in the team.
16.
According to the player, the club’s attitude changed in October 2007, when it
allegedly started to put pressure on him to travel back to country G, which
request he fulfilled in November 2007 against his doctors’ advice.
17.
The player deems that the club forced him to return to country G in spite of two
medical reports attesting that he should not be removed from his familiar
environment in order to recover quickly. In this regard, he presented a copy of his
correspondence to the club dated 7 November 2007, in which he pointed out that
his return to country G would be to the detriment of his health and in which he
informed the club that his salary as from September 2007 until November 2007
had remained unpaid. In the same letter, he pointed out that it would avoid
damages to both parties if a solution would be found in this situation.
18.
He further submitted a letter dated 14 November 2007, in which the club
informed him, inter alia, that it would meet its financial obligations until his
definitive return to the club and in which it made a proposal to the player to
appoint a doctor of the club’s choice for his medical re-examination and, in the
event of discrepancy in medical findings, to appoint a doctor by mutual consent,
and depending on the medical situation to renew the terms of the employment
contract and his transfer to a country S club.
19.
In addition, the player considers that the outstanding salaries could be considered
a just cause to terminate the employment contract and that the club breached the
employment contract by failing to pay his salaries while he was recovering from
his illness.
Club A, from country G / Player R, from country S
Page 4 of 16
20.
The player further submits that, after his return to the club in November 2007, his
health condition deteriorated and he had to be hospitalized, which was allegedly
proven by the invoice that was presented by the club in its statement of claim.
21.
The player states that after his father’s death in June 2008 he suffered, in July
2008, one of the worst attacks of depression. He submits that he informed the
club of such condition by phone and the club then considered that there was a
justified cause to allow him to be in country S. Furthermore, his doctors forbade
him to work and/or travel to country G.
22.
He further holds that during July and August 2008, he did not receive any
communication from the club and that, in September 2008, he travelled back to
the club.
23.
According to the player, during a meeting with the club’s board of directors he
informed the club of his medical situation and presented his doctor’s report of 13
September 2008 stating that he could not work for the time being. Furthermore,
after he had asked the club to pay his outstanding receivables, the club allegedly
informed him that it would do so if he accepted to extend the employment
contract for two more seasons since, once recovered, he was considered one of
the best players in Europe.
24.
The player deems that it is a clear contradiction when the club offered to extend
the employment contract, whereas it considered that he had breached such
contract. According to the player, the real problem for the club was his negative
approach towards a contract extension, as the club would then be deprived of
receiving a transfer compensation.
25.
The player asserts that as from 19 September 2008 until 31 December 2008, being
on recovery from his continuous depression, he was in country S and did not sign
any contract. He wonders why, if the club considers that he breached the
employment contract, it did not send him any notification.
26.
According to the player, the club failed to pay the contractual instalments that
fell due in May, July, August and September 2008 totalling EUR 72,020.
27.
In this context, he points out that he never asked the club to pay these monies
due to his health situation, as his doctor had advised him to forget the club and
country G and to start over somewhere else.
28.
He confirms having signed an employment contract with the country I, Club B,
towards the end of February 2009, i.e. after the expiry of his employment contract
with the country G club, with the approval of his doctors. Three months after the
Club A, from country G / Player R, from country S
Page 5 of 16
end of his contractual relation with the country G club he recovered from his
mental illness and he deems that the club’s attitude towards him in 2007
deteriorated his attacks of depression.
29.
For these reasons, the player submits that his absence was justified by medical
reasons and rejects that he acted in breach of contract.
30.
As regards the amount of compensation claimed by the club, the player considers
that “lucrum cessans” could never have existed, since in order for the club to
obtain a transfer compensation, the player would have needed to accept to be
transferred. Furthermore, as regards the alleged costs incurred for his
replacement, the player points out that he was injured and that it was for that
reason that the club had to hire another player. In addition, according to the
player, there is no proof that the hiring of the player referred to by the club was
directly connected to the alleged breach of contract, also given that the new
player was registered with the club well before the alleged breach of contract
occurred. As regards the remaining contractual value claimed by the club, the
player submits that the club has included outstanding salaries, which obviously
cannot be considered a remaining value. In any case, the player considers that
there is no remaining value, as there has been no formal termination of the
employment contract prior to its contractual term. With respect to “sports related
damage” claimed by the club, the player points out that the damage arose from
his mental illness, which should be considered equal to an injury, which is a risk
inherent to any employment relation. Equally, the player asserts that medical
costs have to be borne by the club.
31.
The player lodged a counterclaim against the club, on 16 August 2010,
maintaining that the club is to be held liable for breach of contract by having
delayed the payment of his salaries of September 2007 to November 2007 and
having forced him to return to the club in 2007, while the club was aware of his
mental illness, which forced return allegedly has led to the deterioration of his
health condition. Furthermore, according to the player, the club acted in breach
of contract by failing to pay his remuneration between May and September 2008.
32.
Therefore, the player asks that the club be held liable for breach of contract and
be ordered to pay the remuneration of May, July, August and September 2008
totalling the amount of EUR 72,020 plus 5% interest as of September 2008. In
addition, he asks that the club be ordered to pay CHF 10,000 as compensation for
his legal costs.
33.
The club, for its part, rejects the counterclaim and amended its initial claim.
Club A, from country G / Player R, from country S
Page 6 of 16
34.
The club acknowledges that the player was undergoing medical treatment in
country S as from July 2007 until November 2007 with the club’s consent and
denies that it put pressure on him to return in November 2007. In this context, the
club highlights that the player had indicated in his reply to the claim that he decided
to return to country G because he was, “at that moment, very pleased with the club”.
The club further emphasises that as the player’s treatment was taking longer than
expected, it wished to exercise its legitimate right to have him examined by a
doctor appointed by the club.
35.
The club asks that the player be held liable for breach of contract without just
cause by not resuming duty as from 7 July 2008, even after having been reminded
by the club to do so. The club points out that the player failed to present any
written evidence for his allegations relating to summer 2008 and, in particular, he
failed to prove that his absence was justified. The club submits that the player
never notified the club of his denial to resume duty nor did he transmit any
doctor’s report to the club in order to account for his absence. In this respect, the
club presumes that, at that time, such documents did not exist and that the player
is now using back-dated certificates to support his position. The club holds that
the player should have notified the club in writing of his absence and the reasons
thereof.
36.
The club highlights that the player does not contest that he was absent from the
club as from 7 July 2008 until 19 September 2008.
37.
In addition, the club presented written declarations of three colleagues of the
player, in order to show that the club had done its best to support the player and
that the player had not complained about anything after his return to the club in
November 2007. The club also submitted a written declaration of its doctor
stating that the player had not presented any symptoms or ailments after his
return in November 2007 and that he had not received any medical documents
from the player relating to his absence.
38.
As regards the player’s remuneration for May, June and July 2008, the club holds
that the May 2008 instalment was paid to the player on 30 June 2008 and that the
club was not obliged to pay for July and August 2008 as during this time he was
absent from training sessions without notification and, thus, has not rendered any
services to the club. The club considers it odd that the player now claims for
“outstanding salaries”, whereas he never complained before.
39.
The club fully rejects the player’s counterclaim emphasising that, even if there
would have been any outstanding amount for one month only (May 2008), this
could not be considered a just cause for the termination of the employment
Club A, from country G / Player R, from country S
Page 7 of 16
contract. However, should the Dispute Resolution Chamber consider that the
salary for May 2008 was outstanding, the claim should be rejected on the grounds
of statute of limitations, given that the player lodged his counterclaim on 16
August 2010 only.
40.
In his final comments, the player insists that his absence from the club was fully
justified and consented to by the club. As regards the period of time between 7
July 2008 and December 2008, the player reiterates that he was under medical
treatment after the relapse due to his father’s death as testified in writing by his
doctor.
41.
He stresses that he went to country G in September 2008 to explain his health
situation at the club’s board of directors.
42.
As regards the doctor’s certificate presented by the club testifying that the
player’s health situation during 2008 was normal, the player points out that this
doctor might have been influenced by the club, which paid him.
43.
The player holds that he suffered from a severe illness and was on treatment
between July 2008 and December 2008 as demonstrated by the medical certificate
issued by his doctor and that he did not terminate the employment contract.
44.
The player highlights that the club has not presented any proof of payment of his
salaries.
45.
The player deems that there is no termination of the employment contract in this
case and that the club must pay all the pending salaries up to the end of the
employment contract in December 2008.
II.
Considerations of the Dispute Resolution Chamber
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 6 October 2008. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21
par. 2 and 3 of the Procedural Rules).
Club A, from country G / Player R, from country S
Page 8 of 16
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 par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012) 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 country G club and a country S player.
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 par. 2 of the Regulations on the Status and Transfer of Players
(editions 2012, 2010, and 2009), and considering that the present claim was
lodged on 6 October 2008, the 2008 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 the above-mentioned facts as well as the
arguments and the documentation submitted by the parties.
5.
The members of the Chamber acknowledged that the parties were bound by an
employment contract, which was signed on 12 January 2006 and valid as from the
date of signature until 30 December 2008. The Claimant/Counter-Respondent, on
the one hand, maintains that the employment contract was terminated by the
Respondent/Counter-Claimant without just cause as a result of the latter’s absence
from the club as from 7 July 2008 until 19 September 2008 without its
authorisation or just cause. The Respondent/Counter-Claimant, on the other hand,
rejects such claim and lodged a counterclaim against the Claimant/CounterRespondent maintaining that the latter had acted in violation of its contractual
obligations.
6.
The Chamber highlighted that the underlying issue in this dispute, considering the
conflicting positions of the parties, was to determine whether the employment
contract had been prematurely and unilaterally terminated with or without just
cause by either of the parties. The DRC also underlined that, subsequently, if it
were found that the employment contract was breached by one of the parties
without just cause, it would be necessary to determine the consequences for the
party that is to be held liable for the breach of the employment contract without
just cause.
7.
In continuation, the Chamber, first and foremost, acknowledged that it has
remained undisputed that the Respondent/Counter-Claimant was absent from the
club as from 7 July 2008 until 19 September 2008, which fact forms the basis of
Club A, from country G / Player R, from country S
Page 9 of 16
the claim for breach of contract put forward by the Claimant/CounterRespondent.
8.
According to the Claimant/Counter-Respondent, the Respondent/CounterClaimant was absent during said period of time without its authorisation or just
cause.
9.
The Respondent/Counter-Claimant, for his part, held that his absence was justified
for medical reasons, in particular, in the light of the fact that the
Claimant/Counter-Respondent, as early as 2007, has been well aware of the fact
that he suffered from psychological depressions. The members of the Chamber
noted that, according to the player, for these reasons, in 2007, he was authorised
by the Claimant/Counter-Respondent to be absent from the club and stay in
country S. The Chamber took due note of the documentation presented by the
Respondent/Counter-Claimant in this regard, i.e. a copy of the relevant exchange
of correspondence between the player and the club as from September 2007 until
November 2007 as well as of medical certificates issued during said period of time
in 2007.
10.
The members of the Chamber pointed out that, irrespective of the
aforementioned documentation presented by the Respondent/Counter-Claimant,
it can be noted that the club itself, in its statement of claim, indicated that in 2007
the player returned to country S, as of July 2007, with its authorisation for a
medical treatment.
11.
What is more, the DRC took into account that from the documentation presented
by the player in respect of his aforementioned health situation in 2007 (cf. point
II./9. above), it can be noted that the Respondent/Counter-Claimant was aware of
how to act administratively towards the club in the event of being absent from
the club for medical reasons, since the player was confronted with an absence for
medical reasons in 2007.
12.
In continuation, the Chamber highlighted that after his return to the club in
November 2007, the player rendered his services to the Claimant/CounterRespondent until July 2008, when he returned to country S.
13.
According to the Respondent/Counter-Claimant, after his father’s death in June
2008, in July 2008 he suffered one of the worst attacks of depression. He further
held that he informed the club of such condition by phone and that the
Claimant/Counter-Respondent considered that he had a just cause to be absent
from the club and stay in country S.
Club A, from country G / Player R, from country S
Page 10 of 16
14.
The Chamber took due note that the Claimant/Counter-Respondent, on the other
hand, submitted that the Respondent/Counter-Claimant had been absent as from
7 July 2008 without its authorisation even after having been put in default to
resume his duties. In addition, the Claimant/Counter-Respondent asserted that the
Respondent/Counter-Claimant neither communicated to the club his denial to
resume duty for medical reasons nor transmit any doctor’s attestation in order to
account for his absence.
15.
In the light of the above circumstances, the Chamber concluded that while
analysing the early termination of the employment relation in the matter at
stake, it shall focus its attention on the events that transpired as of July 2008.
16.
In continuation, and referring to 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, the members of the Chamber took into account
that the Respondent/Counter-Claimant had not presented any documentary
evidence corroborating his assertion that he was authorised by the
Claimant/Counter-Respondent to be absent from the club as of 7 July 2008.
Furthermore, the Chamber highlighted that the medical documents presented by
the Respondent/Counter-Claimant relating to 2008 were issued on 13 September
2008 and on 17 August 2010 only and that the Respondent/Counter-Claimant had
provided the Claimant/Counter-Respondent with these medical attestations
during a meeting with the club in September 2008 only, whereas he had been
absent from the club as of 7 July 2008 already. It was, in particular, noted that the
Respondent/Counter-Claimant had not presented any proof of having notified the
Claimant/Counter-Respondent of these medical attestations prior to his meeting
with the club in September 2008.
17.
For the sake of completeness and referring to the player’s allusions regarding his
approved absence for medical reasons in 2007, the Chamber deemed it important
to stress that the player’s health situation in 2007 and the alleged events
surrounding that situation in 2007 cannot be considered as a just cause for the
player to be absent from the club without authorisation or communication with
the club as of 7 July 2008.
18.
The members of the Chamber then turned their attention to the counterclaim
lodged by the player on 16 October 2010, who maintains that the
Claimant/Counter-Respondent is to be held liable for breach of contract for
having delayed the payment of his salaries of September 2007 to November 2007
and for having failed to remit his remuneration between May 2008 and
September 2008. In this context, and irrespective of the rejection by the
Claimant/Counter-Respondent of such counterclaim, the members of the Chamber
Club A, from country G / Player R, from country S
Page 11 of 16
recalled, as stated above, that the Respondent/Counter-Claimant had not been
able to provide evidence demonstrating that he was authorised by the
Claimant/Counter-Respondent to be absent from the club as from 7 July 2008 until
19 September 2008. Accordingly, the members of the Chamber took into
consideration that the Claimant/Counter-Respondent may have had valid reasons
not to proceed with the payment of the Respondent/Counter-Claimant’s
remuneration during said period of time.
19.
In continuation, in the event of the Claimant/Counter-Respondent having had
valid reasons to refrain from the payment of the player’s remuneration as of July
2008, the Chamber stressed that on the basis of the assertions of the
Respondent/Counter-Claimant remuneration of only one month, i.e. May 2008,
would have been outstanding. 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 a just cause for a player to cease rendering his services to a club.
20.
Irrespective of the aforementioned consideration, the Chamber deemed that, the
counterclaim having been lodged on 16 October 2010 only, a claim relating to
outstanding remuneration falling due in May 2008 must be considered barred by
the statute of limitations in accordance with art. 25 par. 5 of the Regulations.
21.
On account of the above considerations, the members of the Chamber established
that the Respondent/Counter-Claimant was absent from the club as of 7 July 2008
until 19 September 2008 without the club’s authorisation and not resuming his
duties thereafter and that, consequently, he has acted in breach of the
employment contract without just cause.
22.
Having established that the Respondent/Counter-Claimant is to be held liable for
the early termination of the employment contract as of 7 July 2008, the Chamber
decided that in accordance with art. 17 par. 1 of the Regulations, the
Respondent/Counter-Claimant is liable to pay compensation to the
Claimant/Counter-Respondent.
23.
For the sake of completeness and referring to art. 17 par. 2 of the Regulations, in
accordance with which a player’s new club shall be jointly and severally liable for
the payment of compensation in the event of a player being required to pay
compensation, the Chamber wished to point out that, in the present matter, there
is no such “new club”.
24.
Having said that, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract payable by the
Respondent/Counter-Claimant to the Claimant/Counter-Respondent in the case at
Club A, from country G / Player R, from country S
Page 12 of 16
stake. In this respect, 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 player under the
existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, the fees and expenses paid or incurred by
the club (amortised over the term of the contract), and depending on whether
the contractual breach falls within the protected period.
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 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.
26.
Subsequently, turning their attention to the remaining value of the pertinent
employment contract after its termination without just cause by the player, which
value constitutes an essential criterion in the calculation of the amount of
compensation in accordance with art. 17 par. 1 of the Regulations and the wellestablished jurisprudence of the Chamber, the members of the Chamber
acknowledged that, as from the moment of the player’s unjustified absence, the
relevant employment contract was to run for six more months, i.e. as from July
2008 until and including December 2008, and that the remuneration due to the
player during such time in accordance with the employment contract was of EUR
58,803, which amount serves as the basis for the final determination of the
amount of compensation for breach of contract.
27.
At this point, the members of the Chamber noted that the player had not entered
into any new employment contract during the aforementioned period of time.
28.
In continuation, and referring to art. 12 par. 3 of the Procedural Rules, although
bearing in mind that the Claimant/Counter-Respondent had not specifically
included any of these costs in its claim, the Chamber established that it had no
indications at its disposal regarding possible fees and expenses paid or incurred by
the Claimant/Counter-Respondent for the acquisition of the Respondent/CounterClaimant and that, therefore, it could not further consider that criterion in the
specific case at hand, whereas according to article 17 par. 1 of the Regulations
Club A, from country G / Player R, from country S
Page 13 of 16
such fees and expenses may be included as one of the criteria to be taken into
account in the calculation of compensation.
29.
The Chamber noted that in its calculation of the amount of compensation the
Claimant/Counter-Respondent had included costs relating to the acquisition of a
player that allegedly replaced the Respondent/Counter-Claimant. In this regard,
the Chamber deemed that it could not be established that these costs would
either constitute an objective element or be linked to specifity of sport.
30.
Likewise, the members of the Chamber agreed that the amount of EUR 50,000,
which was put forward by the Claimant/Counter-Respondent in its claim
maintaining that it would have accepted to negotiate the player’s transfer on the
basis of such offered amount, could not be accepted, since it was considered to be
speculative.
31.
In addition, the Chamber decided to reject the Claimant/Counter-Respondent’s
claim to receive the unspecified amount of EUR 100,000 for “sports related
damage”, since there appears to be no legal or contractual basis for such claim.
32.
At this point, the members of the Chamber agreed that, given the particularities
of the matter at hand, attenuating circumstances are applicable taking into
consideration the health situation of the player as well as the fact that, although the
May 2008 remuneration was considered to be time-barred, on account of the relevant
document presented by the Claimant/Counter-Respondent in this regard, the
Chamber had doubts as to whether the remuneration for May 2008 had indeed been
remitted by the Claimant/Counter-Respondent to the Respondent/Counter-Claimant.
For these reasons, the Chamber decided to set the compensation for breach of
contract at the total amount of EUR 40,000.
33.
All in all, on account of the aforementioned considerations, the Chamber decided
that the Respondent/Counter-Claimant is liable to pay compensation for breach of
contract to the Claimant/Counter-Respondent in the amount of EUR 40,000.
34.
In addition, taking into account the Claimant/Counter-Respondent’s request as
well as the constant practice of the Dispute Resolution Chamber, the Chamber
decided
that
the
Respondent/Counter-Claimant
must
pay
to
the
Claimant/Counter-Respondent interest of 5% p.a. on the amount of compensation
as of 18 December 2012.
35.
Moreover, the Dispute Resolution Chamber decided to reject the
Claimant/Counter-Respondent’s claim pertaining to legal costs in accordance with
Club A, from country G / Player R, from country S
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art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding
jurisprudence in this regard.
36.
Furthermore, the members of the Chamber decided to reject any further claim
lodged by the Claimant/Counter-Respondent.
37.
The Chamber concluded its deliberations in the present matter by rejecting the
counterclaim lodged by the Respondent/Counter-Claimant.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club A, is partially accepted.
2.
The Respondent/Counter-Claimant has to pay to the Claimant/CounterRespondent, within 30 days of notification of the present decision, compensation
for breach of contract in the amount of EUR 40,000 plus 5% interest p.a. as of 18
December 2012 until the date of effective payment.
3.
In the event that the amount due to the Claimant/Counter-Respondent is not paid
by the Respondent/Counter-Claimant within the stated time limit, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
4.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
5.
The counterclaim of the Respondent/Counter-Claimant, Player R, is rejected.
6.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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.
*****
Club A, from country G / Player R, from country S
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Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives). The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Club A, from country G / Player R, from country S
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