Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 December 2013,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
Todd Durbin (USA), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
Club M, from country S
as Claimant/Counter-Respondent
against the player,
Player V, from country B
as Respondent/Counter-Claimant
and the club,
Club F, from country B
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 31 August 2010, the player from country B, Player V (hereinafter: the
Respondent/Counter-Claimant), and Club M, from country S (hereinafter: the
Claimant/Counter-Respondent), signed an employment contract (hereinafter: the
contract) valid as from 31 August 2010 until 30 June 2012.
2.
According to art. II par. 1 of the employment contract, the Claimant/CounterRespondent undertakes to pay the Respondent/Counter-Claimant a monthly salary
in the amount of EUR 7,000, as from 31 August 2010.
3.
Article III of the contract in fine stipulates that the “Contractual parties agreed
that if the player violates the obligations arising from the contract that are not
sanctioned by the contract, the club has the right to use the sanctions states in the
‘Rules of Behaviour of the Professional Football Player of Club M. The club has
inter alia the right to decrease the basic monthly salary, stated in art. II of this
contract to aliquot part, in case of unexcused non-participation of the player in
activities stated in the art. III of this contract”.
4.
On 16 March 2011, the Claimant/Counter-Respondent lodged a claim in front of
FIFA against the Respondent/Counter-Claimant for breach of contract without just
cause, on 10 March 2011. In this context, the club requests the total amount of
EUR 330,545, plus interests of 5% p.a., made up of:
- EUR 204,545 of non-amortized transfer compensation;
- EUR 126,000 corresponding to the remaining value of the contract.
5.
According to the Claimant/Counter-Respondent, the Respondent/CounterClaimant did not resume his sporting activities after the winter break, from 10
December 2010 until 4 January 2011.
6.
The Claimant/Counter-Respondent provided a copy of the two warnings sent to
the Respondent/Counter-Claimant on 7 January 2011 and 4 February 2011, by
means of which the latter was warned about his situation of non-compliance with
the employment contract. The Respondent/Counter-Claimant was requested to
return immediately to the club and informed that the Claimant/CounterRespondent shall seek the application of disciplinary measures against him before
FIFA. The aforementioned correspondence allegedly remained unanswered.
7.
On 10 March 2011, a meeting was allegedly held between the Claimant/CounterRespondent and the Respondent/Counter-Claimant, during which the latter
expressed his wish to terminate the employment contract, alleging personal
reasons.
Club M, from country S / Player V, from country B / Club F, from country B
2/16
8.
In his response, the Respondent/Counter-Claimant rejects the Claimant/CounterRespondent’s arguments, according to which he abandoned his activities with the
club without previous notice. The Respondent/Counter-Claimant states having
been authorised by the president and the coach of Club M to find a new club,
after the poor results of the Claimant/Counter-Respondent in the Champions
League. In this respect, the Respondent/Counter-Claimant provided a copy of the
authorisations issued by the Claimant/Counter-Respondent, dated 18 January 2011
and 8 February 2011.
9.
Alas, the Respondent/Counter-Claimant was not successful in his search for a new
club and decided to return to Club M. The country S club, however, had allegedly
no interest in keeping the Respondent/Counter-Claimant and, not only was he not
accepted back, but allegedly also banned from training.
10.
On 15 March 2011, the Respondent/Counter-Claimant sent a letter to the
Claimant/Counter-Respondent, by means of which he requested to be allowed to
participate in training as well as the payment of his salaries for the past three
months. Should the Claimant/Counter-Respondent refuse to comply with such
requests, the Respondent/Counter-Claimant requests an amicable termination of
the contract.
11.
In its letter dated 18 March 2011, provided by the Respondent/Counter-Claimant,
the Claimant/Counter-Respondent reminds the Respondent/Counter-Claimant of
the previous warnings sent to him and the financial consequences of his absence
from training; moreover, the Claimant/Counter-Respondent informs the
Respondent/Counter-Claimant that the termination of the contract – deemed
premature and unilateral – is only possible after the payment of a compensation
in the amount of EUR 330,545 to the Claimant/Counter-Respondent. Club M
further states that the Respondent/Counter-Claimant had been previously warned
about the existence of outstanding debts regarding income taxes and the
compulsory health insurance, for the period of 1 February 2007 to 5 July 2009,
during which the Respondent/Counter-Claimant was previously registered with
the Claimant/Counter-Respondent. The Claimant/Counter-Respondent claims that
those amounts were paid to the relevant authorities on his behalf, as per his
alleged authorisation. Enclosed to the letter is a statement from the
Claimant/Counter-Respondent, listing the salaries that have been paid to the
Respondent/Counter-Claimant and the relevant tax deductions.
12.
The Respondent/Counter-Claimant considers the compensation requested by the
Claimant/Counter-Respondent as abusive and requests, by means of a
counterclaim, the payment of outstanding salaries in the total amount of EUR
22,753.25, made up of:
- EUR 4,290.86 as reimbursement of the amount deducted from his salary of
November 2010, as an alleged debt towards the health insurance;
Club M, from country S / Player V, from country B / Club F, from country B
3/16
- EUR 4,462.39 as reimbursement of the amount deducted from his salary of
December 2010, as an alleged debt towards the health insurance;
- EUR 7,000, corresponding to his salary of January 2011;
- EUR 7,000, corresponding to his salary of February 2011.
13.
The Claimant/Counter-Respondent in its replica confirms that it had the intention
of selling the Respondent/Counter-Claimant to another club, but points out that
this possibility arose only after the Respondent/Counter-Claimant failed to resume
his activities with the club on 5 January 2011 (cf. point I.9. above). On 7 January
2011 the Claimant/Counter-Respondent warned the Respondent/Counter-Claimant
about the consequences of his absence and on 12 January 2011 it was contacted
by a Mr G, who claimed that he would be able to find the Respondent/CounterClaimant a new club. Assuming that the Respondent/Counter-Claimant was not
interested in maintaining his employment with Club M, the Claimant/CounterRespondent issued the authorisation dated 18 January 2011. As Club M was
informed that there were several clubs interested in the Respondent/CounterClaimant, it issued another authorisation dated 8 February 2011 valid until 15
February 2011. The Claimant/Counter-Respondent however points out that, in the
e-mail to which such authorisation was attached, it emphasised that “[…] this
authorization shall not be used as an excuse for non-participation of Player V in
the club activities and obligations arising from his contract with Club Z under any
circumstances”. As no concrete offer was made to Club Z, the Claimant/CounterRespondent tried itself to find the Respondent/Counter-Claimant a new club in
country F, on 9 March 2011; however, according to the Claimant/CounterRespondent, no club was willing to hire a player with disciplinary problems.
14.
The Claimant/Counter-Respondent insists that the Respondent/Counter-Claimant
only returned to the club on 10 March 2011. The Claimant/Counter-Respondent
rejects the accusations of having excluded the Respondent/Counter-Claimant from
training and refers, in this regard, to its letters dated 7 January 2011 and 4
February 2011 (cf. point I.6. above), requesting the Respondent/CounterClaimant’s return. The Claimant/Counter-Respondent claims that the contract was
terminated upon request of the Respondent/Counter-Claimant.
15.
In addition, the Claimant/Counter-Respondent claims to have the right to reduce
the Respondent/Counter-Claimant’s salary on a pro rata basis in case of unexcused
absences, as per art. III of the contract (cf. point I.3. above), which outlines the
obligations of the Respondent/Counter-Claimant and the possibility for the
Claimant/Counter-Respondent to reduce his salary in case of breach. Since the
Respondent/Counter-Claimant has not provided his services to the
Claimant/Counter-Respondent since January 2011, his salaries for January and
February 2011 are not due. Moreover, by means of its letter dated 6 April 2011,
the Claimant/Counter-Respondent informed the Respondent/Counter-Claimant
that any person living in the Republic of country S is obliged to pay for the public
Club M, from country S / Player V, from country B / Club F, from country B
4/16
health insurance, as per Act. No 580/2004. In this regard, the Claimant/CounterRespondent provided copies of the following documents: “application forms of
insured person for the compulsory health insurance” dated 12 February 2007 and
31 August 2010 signed by the Respondent/Counter-Claimant, bank statement
dated 15 December 2010, not translated, assigning the amounts of EUR 4,290.86
and EUR 4,462.39 to Player V and partially translated confirmation from the
insurance company of the Respondent/Counter-Claimant’s account number as
indicated in the bank statement. Therefore, the Claimant/Counter-Respondent
claims having no outstanding amounts towards the Respondent/Counter-Claimant.
16.
In his duplica, the Respondent/Counter-Claimant claims that the Claimant/CounterRespondent was no longer interested in his services, but only in obtaining
financial compensation from his transfer. Furthermore, he claims that the amount
deducted from his salaries as health insurance contribution was never used for his
benefit, but probably for that of the entire team. The Respondent/CounterClaimant claims the total amount of EUR 8,735.25 was deducted from his salaries
and requests its reimbursement.
17.
Finally the Respondent/Counter-Claimant states that, as he returned to the
Claimant/Counter-Respondent in January 2011, he was told that he would be
transferred and could no longer play with the first team. His request to play with
the second team was allegedly also refused without explanation.
18.
In its response to the Respondent/Counter-Claimant’s duplica, the
Claimant/Counter-Respondent insists that the Respondent/Counter-Claimant
abandoned the club without just cause and within the protected period. The
Claimant/Counter-Respondent further states that the deductions in the amounts
of EUR 4,290.86 on 15 December 2010 and EUR 4,462.39 on 31 January 2011
consisted of a mandatory contribution to the general insurance health company.
In this respect, the Claimant/Counter-Respondent provided a copy of a statement
of the general insurance health company dated 15 November 2012 and confirming
the payment of such amounts for the Respondent/Counter-Claimant.
19.
In
addition,
the
Claimant/Counter-Respondent
insists
that
the
Respondent/Counter-Claimant left the club in December 2010, without having
issued any warning to the Claimant/Counter-Respondent regarding the amounts
he claims were illegally deducted from his income. The Claimant/CounterRespondent deems that, even if such deductions are considered by FIFA as not
due, this would not constitute a just cause for the Respondent/Counter-Claimant
to terminate the contract. The Claimant/Counter-Respondent insists on having
requested the return of the Respondent/Counter-Claimant to Club M, however,
without success. During the period of his unjustified absence, the
Respondent/Counter-Claimant is not entitled to any salaries. Therefore, the
Claimant/Counter-Respondent’s claim should be entirely accepted.
Club M, from country S / Player V, from country B / Club F, from country B
5/16
20.
In his final position, the Respondent/Counter-Claimant rejects the
Claimant/Counter-Respondent’s arguments and insists on the fact that the amount
of approximately EUR 9,000 was not paid to his own insurance account, but on
behalf of the entire club. In addition, he claims that from the documentation
provided by the Claimant/Counter-Respondent in this regard, it appears that his
name has been included subsequently by hand. The Respondent/Counter-Claimant
also claims that such amount does not appear realistic for a 6-month insurance. In
this respect, the Respondent/Counter-Claimant claims that “it is completely normal
that the company they work with for years did something like that for their
important client”. The Respondent/Counter-Claimant equally rejects the argument
that he voluntarily decided to leave the Claimant/Counter-Respondent.
21.
After a 6-month pause, the Respondent/Counter-Claimant claims having returned
to country B and been registered with Club F. Then, on 1 January 2012, he signed
a contract with the Club O, from country C. The Respondent/Counter-Claimant
allegedly lost his status of a national team player, was forced to play for lowerranked teams and has seen his value in the football market considerably diminish.
22.
In its final position, the Claimant/Counter-Respondent claims that the insurance
company to which the amount indicated has been paid is not a private company,
but a State institution. The amount paid does not correspond to 6 months only, as
the Respondent/Counter-Claimant claims, but to the total amount due for the
period of 1 February 2007 to 5 July 2009.
23.
Moreover, the Claimant/Counter-Respondent states that, even if the deductions
are considered unjustified, this does not allow the Respondent/Counter-Claimant
to unilaterally terminate the contract with just cause. In addition, even if the
Respondent/Counter-Claimant considers that his salaries were not paid on time, he
does not have a just cause to terminate the contract, since he did not put the
Claimant/Counter-Respondent in arrears prior to the termination. Nevertheless,
the Claimant/Counter-Respondent insists on the fact that all of the
Respondent/Counter-Claimant’s salaries were paid on time and it was the
Respondent/Counter-Claimant who did not return to Club M for the second half of
the 2010/2011 season, alleging “family issues, problematic relationship with
teammates and a coach, substitution during one of the Champions League
matches, etc”.
24.
Thus, the Claimant/Counter-Respondent maintains its original claim and claims
that the Respondent/Counter-Claimant’s new club, Club F (hereinafter: the
Intervening Party), should be held jointly liable for the payment of compensation.
25.
In its position, Club F does not submit any comments on the present affair, but
merely mentions having a dispute of its own against the Respondent/Counter-
Club M, from country S / Player V, from country B / Club F, from country B
6/16
Claimant, ruled by the Commission on the Status of Players and Clubs of the
Football Association of country S.
26.
According to the information contained in TMS, after the alleged breach, the
Respondent/Counter-Claimant was employed with the following clubs:
- Club F , from 6 June 2011 to 5 June 2014, for an unknown amount of
remuneration;
- Club O , from 1 January 2012 to 30 June 2014, for a monthly salary of currency
of country C 60,000 (EUR 2,350).
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this
respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules). The present matter was submitted to FIFA on
16 March 2011. Therefore, the Chamber concluded that the edition 2008 of the
Procedural Rules was applicable to the matter at hand (cf. art. 21 par. 2 and 3 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in
combination with art. 22 b) of the Regulations on the Status and Transfer of
Players (editions 2010 and 2012; hereinafter: the Regulations), the Dispute
Resolution Chamber shall adjudicate on employment-related disputes between a
country S club, a country B player and a country B club, with an international
dimension.
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 (editions 2010 and 2012), and
considering that the present claim was lodged on 16 March 2011, the 2010 edition
of said regulations is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so,
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.
Club M, from country S / Player V, from country B / Club F, from country B
7/16
5.
In this respect, the members of the DRC acknowledged that it was undisputed by
the parties that, on 31 August 2010, the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant signed an employment contract valid as from the
date of signature until 30 June 2012, in accordance with which the
Respondent/Counter-Claimant was entitled to receive a monthly salary in the
amount of EUR 7,000.
6.
The DRC noted that, on the one hand, the Claimant/Counter-Respondent claims
that, in order for the player to possibly find a new club, it issued two
authorisations, on 18 January 2011 and on 8 February 2011, allowing the
Respondent/Counter-Claimant’s search for new employment, while reminding him
that said authorisations did not exempt him from his obligation to participate in
the club’s activities. The Claimant/Counter-Respondent claims that the
Respondent/Counter-Claimant failed to return to the club after the end of the
Christmas holidays on 5 January 2011 as well as after the expiry of the
authorisations, in spite of the warnings sent to him on 7 January 2011 and 4
February 2011. Additionally, the Claimant/Counter-Respondent insists that it was
never put in arrears by the Respondent/Counter-Claimant with regard to payments
he alleged being outstanding. Thus, the Claimant/Counter-Respondent deems that
the Respondent/Counter-Claimant breached the contract without just cause and
consequently requests the payment of compensation in the total amount of EUR
330,545, for which Club F should be held jointly and severally liable.
7.
The Chamber further noted that, on the other hand, the Respondent/CounterClaimant claims having been authorised by the Claimant/Counter-Respondent to
search for new employment, after the poor results of Club M in the Champions
League. Alas, the Respondent/Counter-Claimant claims not having been successful
in his search for a new club. He equally claims to have been prohibited to train
with the Claimant/Counter-Respondent and not to have received his salary for
January and February 2011. In addition, the Respondent/Counter-Claimant stated
that the amount of EUR 8,753.25, allegedly regarding income taxes and
compulsory health insurance, was illegally deducted from his salary of November
and December 2010.
8.
In view of the aforementioned circumstances, on 15 March 2011 the
Respondent/Counter-Claimant requested either to be readmitted to the club and
to be paid his outstanding remuneration or for the contract with the
Claimant/Counter-Respondent to be amicably terminated. On 18 March 2011, the
Claimant/Counter-Respondent answered the Respondent/Counter-Claimant’s
letter, by reminding him of the financial consequences of his non-compliance with
the warnings previously addressed to him and claiming that a premature
termination is only possible upon the payment of compensation to Club M, which
the Respondent/Counter-Claimant refused.
Club M, from country S / Player V, from country B / Club F, from country B
8/16
9.
In view of the foregoing, the Respondent/Counter-Claimant deems that the
Claimant/Counter-Respondent was no longer interested in his services, but only in
obtaining financial advantage from his transfer. Thus, he deems that the
Claimant/Counter-Respondent’s claim should be entirely rejected and lodges a
counterclaim against it for the payment of outstanding remuneration in the total
amount of EUR 22,753.25.
10.
Finally, the DRC noted that the Intervening Party did not submit any comments as
to the substance of the present affair.
11.
Having established the aforementioned, the Chamber deemed that the underlying
issue in the present dispute, considering the claim of the Claimant/CounterRespondent, the counterclaim of the Respondent/Counter-Claimant and the
allegations of both parties, was to determine whether the employment contract
had been 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 had been breached by one of the parties without just cause,
it would be necessary to determine the consequences for the party that caused the
unjust breach of the relevant employment contract.
12.
In view of the above, the Chamber deemed it appropriate to shortly recall the
timeline of events in the present matter according to the documentary evidence
provided by either party as well as the respective allegations which have remained
uncontested by the opposing party. In this respect, the Chamber noted that, on 31
August 2010, the Claimant/Counter-Respondent and the Respondent/CounterClaimant signed an employment contract, valid until 30 June 2012. On 5 January
2011, the Respondent/Counter-Claimant failed to return from his winter holidays
and, thus, on 7 January 2011 the Claimant/Counter-Respondent requested his
return in writing. On 18 January 2011, the Claimant/Counter-Respondent
authorised the Respondent/Counter-Claimant to search for a new club. On 4
February 2011, in view of the Respondent/Counter-Claimant’s failure to return to
Club M after the authorised search for new employment, the Claimant/CounterRespondent issued a warning of potential breach of contract, requesting the
Respondent/Counter-Claimant’s return to the club. On 8 February 2011, the
Claimant/Counter-Respondent
issued
another
authorisation
for
the
Respondent/Counter-Claimant to find a new club, valid until 15 February, while
reminding him via e-mail that “[…] this authorization shall not be used as an
excuse for non-participation of Player V in the club activities and obligations
arising from his contract with Club M under any circumstances”. On 9 March 2011,
the negotiations with a potential new employer for the Respondent/CounterClaimant failed. On 10 March 2011, a meeting was apparently held between the
parties. On 15 March 2011, the Respondent/Counter-Claimant requested from Club
M the payment of his outstanding remuneration and his re-admission to training –
from which he had allegedly been excluded – or the amicable termination of the
contract. The Claimant/Counter-Respondent responded on 18 March 2011,
Club M, from country S / Player V, from country B / Club F, from country B
9/16
claiming that the amicable termination of the contract would only be possible
upon the payment of compensation to Club M.
13.
In view of the foregoing sequel of events, the Chamber observed that in spite of
having been temporarily authorised to search for new employment, the
Respondent/Counter-Claimant has failed to resume his activities with the
Claimant/Counter-Respondent on three different occasions, i.e. on 5 January 2011
after the end of his holidays, on 4 February 2011 after the Respondent/CounterClaimant requested his return, and on 16 February 2011 after the expiry of the
authorisation dated 8 February 2011.
14.
In addition, the Dispute Resolution Chamber took note of the content of the
Claimant/Counter-Respondent’s e-mail which accompanied the last authorisation,
according to which it said authorisation “[…] shall not be used as an excuse for
non-participation of Player V in the club activities and obligations arising from his
contract with Club M under any circumstances”.
15.
At this point and for the sake of good order, the Chamber recalled the basic
principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules,
according to which a party claiming a right from an alleged fact shall carry the
respective burden of proof.
16.
Bearing in mind the aforementioned principle, the Chamber observed that, on the
one hand, the Claimant/Counter-Respondent provided consistent evidence of the
fact that, in spite of the fact that the Respondent/Counter-Claimant was
authorised to search for new employment, he had been informed by the
Claimant/Counter-Respondent that he still had to comply with the employment
contract and exercise his professional activities with Club M. Furthermore, the
Claimant/Counter-Respondent equally provided evidence of the fact that, on two
occasions, it requested the Respondent/Counter-Claimant to resume his activities
with the Claimant/Counter-Respondent, by means of its reminders dated 7 January
2011 and 4 February 2011.
17.
On the other hand, the members of the DRC firstly pointed out that the
Respondent/Counter-Claimant had failed to submit any kind of evidence in
relation to his exclusion from training and only contacted the club in connection
thereto as well as alleged outstanding remuneration on 15 March 2011 (cf. point
I.10. above). In this respect, the Chamber pointed out that by then, the
Respondent/Counter-Claimant had already failed to return to the
Claimant/Counter-Respondent on three occasions, as detailed in point II.13. above.
18.
Therefore, based on the aforementioned facts, the Chamber decided that the
Respondent/Counter-Claimant was to be held responsible for the breach of
contract without just cause and that, consequently, the contract should be
considered as terminated by the Respondent/Counter-Claimant in March 2011.
Club M, from country S / Player V, from country B / Club F, from country B
10/16
19.
Having established the aforementioned, the Chamber focused its attention on the
consequences of the breach of contract without just cause on the part of the
Respondent/Counter-Claimant. Taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the Claimant/Counter-Respondent is
entitled to receive from the Respondent/Counter-Claimant an amount of money as
compensation for breach of contract.
20.
Prior to establishing the amount of compensation for breach of contract due to
the Claimant/Counter-Respondent by the Respondent/Counter-Claimant, the DRC
deemed it appropriate to consider the Respondent/Counter-Claimant’s
counterclaim for outstanding remuneration, as detailed in point I.12. above, and
occasionally proceed with the calculation of any outstanding monies payable to
the Respondent/Counter-Claimant under the terms of the employment contract
until the date of termination, i.e. until March 2011.
21.
In this respect, the Chamber noted that the Respondent/Counter-Claimant claims
that the Claimant/Counter-Respondent failed to pay his remuneration for the
months of January and February 2011 in the total amount of EUR 14,000 and that
the amount of EUR 8,753.25 was unlawfully deducted by the Claimant/CounterRespondent from his remuneration for November and December 2010, due to the
allegedly mandatory payment of health insurance.
22.
Subsequently, the Chamber took note of the allegations of the Claimant/CounterRespondent. In this regard, the DRC noted that the Claimant/Counter-Respondent
invokes the application of art. III of the contract, according to which the
Respondent/Counter-Claimant had “the right to decrease the basic monthly salary,
stated in art. II of this contract to aliquot part, in case of unexcused nonparticipation of the player in activities stated in the art. III of this contract”. As the
Respondent/Counter-Claimant allegedly did not participate in the activities of the
club as from January 2011, he would not be entitled to receive his remuneration
for the requested period. In addition, the members of the DRC noted that the
Claimant/Counter-Respondent deems that the amount of EUR 8,753.25 – which
related to the amounts due for the period of February 2007 to July 2009 when the
player was registered with the club under a previous contract – was duly deducted
from the Respondent/Counter-Claimant’s salary, since the payment of health
insurance in country S is mandatory.
23.
The Chamber first focused its attention on the content of art. III of the contract,
the reference to which constituted the Claimant/Counter-Respondent’s only
argument in order to justify the non-payment of the Respondent/CounterClaimant’s remuneration for January and February 2011. At this point, the
Chamber deemed it appropriate to analyse the question of whether such clause
inserted in an employment contract could be considered valid. In this regard, the
Chamber deemed that the application of the above-mentioned rule was arbitrary,
Club M, from country S / Player V, from country B / Club F, from country B
11/16
since
it
entitled the
Claimant/Counter-Respondent
to reduce
the
Respondent/Counter-Claimant’s remuneration unilaterally and based on nonobjective criteria, leading to an unjustified disadvantage to the
Respondent/Counter-Claimant’s financial rights.
24.
In view of the foregoing, the Chamber was of the opinion that art. III of the
contract invoked by the Claimant/Counter-Respondent in order to justify the nonpayment of the Respondent/Counter-Claimant’s remuneration for January and
February 2011 – a period during which it had authorised the Respondent/CounterClaimant’s search for new employment and, thus, be partially absent – was not
applicable and that, consequently, its respective argumentation could not be
upheld by the DRC.
25.
The DRC then proceeded to analyse the Respondent/Counter-Claimant’s claim for
reimbursement of EUR 8,753.25 made by the Claimant/Counter-Claimant from the
salary for November and December 2010. In this regard, the Chamber noted that
the contract signed between the Claimant/Counter-Respondent and
Respondent/Counter-Claimant does not contain any stipulation regarding the
deduction of health insurance costs from the Respondent/Counter-Claimant’s
remuneration. In addition, the Chamber noted that the Claimant/CounterRespondent failed to provide a copy of the Act. No 580/2004, based on which it
justifies its obligation to deduct the aforementioned amounts from the
Respondent/Counter-Claimant’s remuneration. Thus, the DRC concluded that the
aforementioned argument of the Claimant/Counter-Respondent could not be
sustained, since there is no evidence that the Claimant/Counter-Respondent is
entitled to deduct amounts from their employees’ wages in order to set-off their
alleged debts towards State authorities in country S. For the sake of good order,
the members of the Chamber further gave their attention to the documentation
submitted by the Claimant/Counter-Respondent and, in this regard, they noted
that the documentary evidence provided did not corroborate the
Claimant/Counter-Respondent’s argument that the Respondent/Counter-Claimant
had debts related to his health insurance.
26.
In addition, the Chamber observed that the Claimant/Counter-Respondent does
not dispute having failed to pay the Respondent/Counter-Claimant’s remuneration
of January and February 2011 or having deducted the amount of EUR 8,753.25
from his remuneration for November and December 2010.
27.
Taking into consideration the Respondent/Counter-Claimant’s counterclaim as well
as the reasons previously exposed, the DRC concluded that, in accordance with the
general legal principle of pacta sunt servanda, the Claimant/Counter-Respondent
must fulfill its financial obligations as per the employment contract concluded
with the Respondent/Counter-Claimant and, consequently, is to be held liable to
Club M, from country S / Player V, from country B / Club F, from country B
12/16
pay the outstanding remuneration due to the latter in the total amount of EUR
22,753.25.
28.
In continuation, the Chamber focused 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
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 Respondent/CounterClaimant 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.
29.
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.
30.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Respondent/Counter-Claimant under the terms of both
the employment contract signed with the Claimant/Counter-Respondent, i.e. Club
M, and the contracts subsequently signed with Club F and Club O, as detailed in
point I.26. above.
31.
In this regard, the Chamber noted that, as per the employment contract signed
with the Claimant/Counter-Respondent, the Respondent/Counter-Claimant was
entitled to a monthly salary of EUR 7,000. Furthermore, the members of the DRC
observed that said contract was to run for 16 months more after the breach of
contract occurred in March 2011.
32.
In continuation, the Chamber established that, since it was not in possession of the
information concerning the amount of remuneration earned by the
Respondent/Counter-Claimant with Club F for the months of March 2011, i.e. the
date of the termination of the contract with Club M, to December 2011, it would
take into account the Respondent/Counter-Claimant’s remuneration with the
Claimant/Counter-Respondent for the calculation of compensation, amounting to
EUR 70,000.
Club M, from country S / Player V, from country B / Club F, from country B
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33.
For the period of January to June 2012, the Chamber decided to take into account
the average between the Respondent/Counter-Claimant’s salary with Club O, i.e.
EUR 2,350, and his salary with Club M, i.e. EUR 7,000, and concluded that the
average remuneration of EUR 28,000 for the aforementioned period should also
be taken into account for the calculation of compensation.
34.
In continuation, the members of the Chamber observed that the
Claimant/Counter-Respondent submitted a copy of the transfer agreement signed
with the Respondent/Counter-Claimant’s former club in order to acquire the
player’s services, according to which transfer compensation in the amount of EUR
250,000 was paid. Taking into account the residual period of the contract, the DRC
established that the non-amortized transfer compensation, amounting to
approximately EUR 180,000, shall also be included in the calculation of the
amount of compensation for breach of contract due to the Claimant/CounterRespondent, in accordance with art. 17 par. 1 of the Regulations.
35.
Thus, based on the aforementioned, the Chamber decided that the total amount
of EUR 280,000 would serve as the basis for the calculation of the amount of
compensation
payable
by
the
Respondent/Counter-Claimant
to
the
Claimant/Counter-Respondent.
36.
At this point, the members of the Chamber agreed that, given the particularities
of the matter at hand, attenuating circumstances are applicable in order to reduce
the amount of compensation due to Club M. In particular, the Chamber wished to
consider the fact that the Claimant/Counter-Respondent appeared to be no longer
interested in the services of the Respondent/Counter-Claimant, as it does not
dispute the fact that it was willing to transfer him to another club. In addition, the
Chamber noted that, as the Respondent/Counter-Claimant proposed the amicable
termination of the contract on 15 March 2011, the Claimant/Counter-Respondent
declared it would only accept it in exchange of the payment of compensation. The
DRC further pointed out that the Claimant/Counter-Respondent did not explicitly
request the Respondent/Counter-Claimant’s return after the failure of the
negotiations with the Finish club and failed to pay his salaries for the months of
January and February 2011.
37.
Thus, in view of the aforementioned circumstances, the Chamber decided to
reduce the amount of EUR 280,000 by one-third, and established that the
Respondent/Counter-Claimant should pay the Claimant/Counter-Respondent the
amount of EUR 186,819 as compensation for breach of contract.
38.
Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the
Regulations, the Intervening Party, Club F, shall be jointly and severally liable for
the payment of the aforementioned amount of compensation.
Club M, from country S / Player V, from country B / Club F, from country B
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39.
In conclusion, the Chamber decided that the claim of the Claimant/CounterRespondent is partially accepted, that the Respondent/Counter-Claimant is
ordered to pay to Club M compensation in the amount of EUR 186,819, plus 5%
interest p.a. as from 12 December 2013 until the date of effective payment and
that Club F shall be held jointly and severally liable for the payment of the
aforementioned amount.
40.
In addition, the Chamber decided that the counterclaim of the
Respondent/Counter-Claimant is accepted and that the Claimant/CounterRespondent is ordered to pay him outstanding remuneration in the amount of
EUR 22,753.25.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club M, is partially accepted.
2.
The Respondent/Counter-Claimant, Player V, is ordered to pay to the
Claimant/Counter-Respondent, Club M, compensation in the amount of EUR
186,819 within 30 days as from the date of notification of this decision, plus 5%
interest p.a. as from 12 December 2013 until the date of effective payment.
3.
The Intervening Party, Club F, shall be held jointly and severally liable for the
payment of the aforementioned amount.
4.
If the aforementioned amount plus interest is not paid within the abovementioned time limit, the present matter shall be submitted, upon request, to the
FIFA Disciplinary Committee for its consideration and a formal decision.
5.
Any further claims lodged by the Claimant/Counter-Respondent, Club M, are
rejected.
6.
The counterclaim of the Respondent/Counter-Claimant, Player V, is accepted.
7.
The Claimant/Counter-Respondent, Club M, is ordered to pay to the
Respondent/Counter-Claimant, Player V, outstanding remuneration in the amount
of EUR 22,753.25 within 30 days as from the date of notification of this decision.
If said amount is not paid within the stated time limit, an interest rate of 5% p.a.
will apply on said amount as of expiry of the above-mentioned time limit and the
present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
Club M, from country S / Player V, from country B / Club F, from country B
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8.
The Claimant/Counter-Respondent, Club M, and Respondent/Counter-Claimant,
Player V, are directed to inform one another, immediately and directly of the
account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Club M, from country S / Player V, from country B / Club F, from country B
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