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
Eirik Monsen (Norway), member
Johan van Gaalen (South Africa), member
Todd Durbin (USA), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
Player A, from country M
as Claimant/Counter-Respondent
against the club,
Club S, from country Q
as Respondent/Counter-Claimant
and the club,
Club N, from country F
as intervening party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 6 August 2011, the Player A, from country M (hereinafter: the Claimant), born in
November 1978, and Club S, from country Q (hereinafter: the Respondent), signed a
“Professional football player’s contract” (hereinafter: the contract) as well as a
document titled “Minutes of Negotiation” regarding the contract (hereinafter: the
minutes), valid as of 1 July 2011 until 1 July 2013.
2.
According to the minutes, the Claimant was entitled to receive a basic annual salary
in the amount of EUR 1,300,000 net.
3.
Moreover, according to said minutes the parties also agreed on the following terms:
- “One car provided by [the Respondent] for the duration of the stay”;
- “A furnished house to accommodate the family will be provided”;
- “10 return – flight business class tickets between country Q and country F”;
- “30% of the salary of each season has to be paid in the beginning of the
season”.
4.
Article 13 of the contract established that “In case of any contractual dispute the
applicable law shall be firstly the Law of the State of country Q and, subsequently,
the country Q Football Association, AFC and FIFA Regulations governing this matter.
The parties agree to submit this Contract to the non exclusive jurisdiction of the
country Q Courts or of any other arbitral tribunal established by country Q Football
Association and country Q League Managment in accordance to its Statutes and the
FIFA National Dispute Resolution Chamber, if applicable.”
5.
Additionally, article 10 of the contract stated that “[the Respondent] and [the
Claimant] shall be entitled to terminate this Contract, before its expiring term, by
fifteen (15) days’ notice in writing for just cause according with the FIFA Regulations
governing this matter as well as the Law of the State of country Q. [The Claimant] can
not terminate the contract unless he gets a written consent from [the Respondent]”.
6.
On 24 September 2012, the Claimant lodged a claim in front of FIFA against the
Respondent, which was amended on 18 October 2012, claiming the total amount of
EUR 2,993,997 as follows:
EUR 638,181 as outstanding salaries composed of:
- EUR 390,000, corresponding to 30% of the annual salary to be paid at the
beginning of the season, due since July 2012;
- EUR 82,727, corresponding to his monthly salary for the month of August 2012;
- EUR 82,727, corresponding to his monthly salary for the month of September
2012;
- EUR 82,727, corresponding to his monthly salary for the month of October 2012;
Player A, country M / Club S, from country Q / Club A, from country F
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EUR 661,816 as compensation, corresponding to 8 monthly salaries, each in the
amount of EUR 82,727, for the months from November 2012 until June 2013;
EUR 32,000, corresponding to 8 months of accommodation to be provided by the
Respondent, each month amounting to EUR 4,000;
EUR 12,000, corresponding to 8 months for the car to be provided by the
Respondent, each month in the amount of EUR 1,500;
EUR 100,000, corresponding to 5 return business class flight tickets country Qcountry F;
EUR 1,000,000, for image and career damages;
EUR 500,000, for moral damages;
EUR 50,000, for procedural costs for his defence.
The Claimant further requested 5% interest p.a. after 30 days of the notification of
the decision and sporting sanctions to be imposed on the Respondent.
7.
The Claimant declared that at the beginning of the season 2012/2013, the
Respondent did not pay him the 30% of his annual remuneration as established in
the minutes. Additionally, the Claimant held that, after the replacement of the team’s
coach the Respondent notified him that he was no longer included in the club’s
projects, proposing him compensation in the amount of five monthly salaries in order
to terminate the contract. In this regard, the Claimant sent the Respondent a letter
via registered mail dated 3 August 2012, by means of which he refused the
Respondent’s offer, emphasizing that his wish was to fulfil the contract until its end,
as well as stated that, in case the Respondent would not change its mind, he would
be ready to make a compromise and agree to an early termination only if the
Respondent would accept to re-evaluate its proposition to twelve monthly salaries as
compensation.
8.
The Claimant affirmed that thenceforth the Respondent started to exclude him from
the team, not inviting him to a training camp in Spain between 23 August and 6
September 2012 and excluding him from the internet site of the Respondent as well
as from the team photo. Moreover, according to the Claimant, he was not registered
to play in the country Q Star League, since the Respondent could only register four
foreign players and it decided to register a new foreign player. In this respect, the
Claimant held that, although the Respondent is not obliged to list the player for all
matches, it has the obligation to give the player condition to perform his work, to
provide him with training and to register him at the federation.
9.
Moreover, on 29 August 2012, the Claimant reiterated his request expressed in the
registered mail dated 3 August 2012, requesting to be given the same opportunities
as other players from the team. On 12 September 2012, the Claimant sent another fax
to the Respondent, by means of which he stated that he did not receive any payment
since June 2012 and also that, according to the contract, at the beginning of each
season, he would be entitled to 30% of his annual salary. In said letter, the Claimant
Player A, country M / Club S, from country Q / Club A, from country F
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pointed out that he was waiting for his remuneration since July 2012 and established
a deadline for payment of his outstanding remuneration until 20 September 2012.
Accordingly, the Claimant declared that the Respondent never provided him with any
response.
10.
On 19 October 2012, FIFA forwarded the claim lodged by the Claimant to the
Respondent via its federation, establishing a deadline until 9 November 2012 to
provide its position.
11.
On 12 November 2012, the Claimant informed FIFA that he terminated the contract
with the Respondent in writing alleging just cause, enclosing an official notice dated
also 12 November 2012, allegedly sent to the Respondent.
12.
On 18 March 2013 the Respondent, represented by the country Q Football
Association, requested an extension of the deadline to submit its position. In this
respect, the country Q Football Association alleged having received a Power of
Attorney from its affiliated club on 12 March 2013 only.
13.
On 27 March 2013, the Respondent presented its position, rejecting the Claimant’s
claim and lodging a counterclaim against the Claimant, alleging that the latter had
unilaterally terminated the contract without just cause and requesting the amount of
EUR 1,374,506 as compensation for breach of contract.
14.
In this regard, the Respondent first of all stated that, according to the contents of the
minutes the parties did not expressly establish monthly payments. Moreover, the
Respondent asserted that there were no problems between the parties during the
season 2011/2012, but that the performance of the Claimant was not what was
expected by the Respondent, considering the financial investment made for him. In
this regard, the Respondent expressed that the Claimant was nevertheless always paid
on time during said season.
15.
Subsequently, the Respondent declared that, due to an injury suffered by the
Claimant, the parties concluded a “Private Agreement” on 18 April 2012, enclosing a
copy of the relevant document. The “Private Agreement” established inter alia the
following:
- “This agreement in consider as a complementary contract to the contract had
been signed between the two parties dated 6-8-2011.”
- The Claimant “due to his required long time treatment of his injury hereby
accept and authorize [the Respondent] to replace him from the list of the first
football team of the Respondent by a new professional football player for the
Emir Cup of the sport season 2011/2012 with out any deduction of the financial
dues of [the Claimant] including bonuses awing the winning of Emir Cup of the
sport season 2011/2012.”
Player A, country M / Club S, from country Q / Club A, from country F
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- “The registration of the new alternative professional football player is not
consider to state as a breach or termination of the contract has been signed
between the two parties dated 6-8-2011.”
16.
The Respondent further stated that, after the end of the sporting season 2011/2012
the parties initiated negotiations in order to find an amicable settlement to terminate
the contract. In this respect, the Respondent admitted having offered to the
Claimant, at the end of July 2012, to pay him an amount equivalent to five monthly
salaries, which according to the Respondent is a reasonable period of time for the
Claimant to find a new club, and which corresponds to 41.6% of his annual salary, an
offer “more than fair for the Claimant”. Accordingly, the Respondent referred to the
Claimant’s correspondence dated 3 August 2012, by means of which the Claimant
confirmed having received the above-mentioned proposal as well as his willingness to
terminate the contract. In this regard, the Respondent affirmed that in said
correspondence the Claimant did not make any reference to outstanding salaries and
acted in bad faith, requesting the payment of the remuneration for the entire season
2012/2013, amount that could not be considered as fair by the Respondent.
Therefore, the Claimant did not contribute to the progress of the negotiations for an
amicable settlement.
17.
Moreover, the Respondent stated that the Claimant also did not mention any
outstanding salaries in his correspondence dated 13 August 2012 and 29 August 2012.
It was only in his letter dated 12 September 2012 that the Claimant argued that there
were outstanding salaries as of June 2012 and gave the Respondent a deadline of
only eight days to settle the outstanding amount otherwise he “will consider the
contract breached by [the Respondent’s] fault without any just cause and lodge a
complaint before FIFA.” According to the Respondent, the deadline given by the
Claimant was not in compliance with article 10 of the contract, according to which
the parties were entitled to terminate the contract before its term by giving 15 days’
notice. Equally, the Respondent declared never having received a notification from
the Claimant concerning the termination of the contract.
18.
Furthermore, the Respondent declared that after the Claimant lodged his claim in
front of FIFA, it continued approaching him in order to find an amicable settlement.
In this respect, on 1 January 2013, the Respondent allegedly invited the Claimant’s
representative via e-mail to travel to country Q in order to negotiate an amicable
settlement, invitation which was apparently accepted by the Claimant’s
representative via his e-mail reply dated 3 January 2013. According to the
Respondent, “during such meeting, it was mutually agreed that the Claimant would
return to country Q in order to settle the matter, whereas the Respondent in return
would pay to the Claimant his financial entitlements until 31.01.2013.” On 30 January
2013, the Respondent sent a further e-mail to the Claimant’s representative
concerning a satisfactory solution reached in the above-mentioned meeting, by
Player A, country M / Club S, from country Q / Club A, from country F
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means of which it asked him to provide the Respondent with the bank details of the
Claimant in order to transfer his financial dues until 31 January 2013. On 7 February
2013, the Respondent sent a reminder to the Claimant’s representative reiterating all
the afore-said.
19.
In this regard, the Respondent insisted that the Claimant never sent a notification of
termination to the Respondent. In this context, taking into account the contents of
the Claimant’s letter dated 12 September 2012, by means of which he gave a deadline
to the Respondent of eight days only in order to settle the outstanding amounts, it
appears that the Claimant considered the contract terminated as of 20 September
2012. In this respect, taking into consideration that the Claimant claimed outstanding
salaries as of July 2012, the Respondent pointed out that on 20 September 2012 the
only salaries outstanding were the ones from July 2012 and August 2012, i.e. only two
monthly salaries. According to the Respondent, the Claimant had no just cause to
unilaterally terminate the contract, since his salaries were not outstanding for longer
than three months, as established by the FIFA and CAS jurisprudence. The Respondent
affirmed that the Claimant terminated the contract without any valid reasons as well
as that he breached article 10 of the contract and therefore, he shall be accountable
to pay the Respondent proper and adequate compensation.
20.
The Respondent also declared that the Claimant did not raise any concrete factual or
legal argument concerning his request for sporting and moral damages, which shall
be rejected. Equally, the Respondent alleged that the Claimant did not provide
relevant documentation regarding his request for accommodation, transportation
and travel allowances as well as that “such benefits are related to the expatriation of
the Claimant and not the performance of his services, which in any case did not
provide after the termination.”
21.
With regards to its counterclaim, the Respondent asserted that the contract did not
provide a particular amount to be paid as compensation in the event of a termination
of contract without just cause, thus the amount to be taken into consideration shall
be the remuneration due to the Claimant under the existing contract. Further, the
Respondent alleged that the residual value of the contract must be considered to
assess the amount of compensation and given that the Claimant considered the
contract terminated as of 20 September 2012, the residual value of the contract
would correspond to the salaries between 21 September 2012 and June 2013.
22.
As to the calculation of the residual value in the amount of EUR 1,074,506, the
Respondent explained the following:
- the annual remuneration of the Claimant was EUR 1,300,000, whereas 30% of it,
i.e. EUR 390,000, were to be paid as sign-on fee at the end of July 2012 and the
remaining amount of EUR 910,000 was divided by the remaining eleven months,
i.e. EUR 82,727 per month;
Player A, country M / Club S, from country Q / Club A, from country F
Page 6 of 18
- considering on the one hand that the Claimant rendered his services from the
period of 1 July to 20 September 2012 only and, on the other hand, that the
sign-on fee is a payment covering the season 2012/2013, it shall also be
considered in the calculation of the compensation, since the Claimant did not
allow the Respondent to amortize such amount. In particular, the Respondent
held that if EUR 390,000 corresponds to 365 days, 82 days (1 July to 20 September
2012) would correspond to EUR 87,616, which would be the amount amortized
and thus, EUR 302,384 is the non-amortized portion of the sign-on fee.
23.
On account of the above, the Respondent declared that on, 20 September 2012, the
amount due to the Claimant would be EUR 225,494, composed of EUR 87,616 as the
amortized sign-on fee, EUR 82,727 as the monthly salary for August 2012 and EUR
55,151 as the partial salary for September 2012 (20 days). As a consequence, the
Respondent affirmed that the residual value of the contract for the period between
21 September 2012 and June 2013 would be EUR 1,074,506 (EUR 1,300,000 – 225,494),
amount to be awarded as compensation.
24.
Furthermore, the Respondent, on the basis of the principle of specificity of sport as
well as considering all the above arguments, requested an additional amount of EUR
300,000 as compensation. To that effect, the total compensation requested by the
Respondent in its counter-claim amounts to EUR 1,374,506. Additionally, the
Respondent asked for an interest rate of 5% p.a. as from the date of the termination
of the contract by the Claimant, i.e. 21 September 2012, and procedural costs. Finally,
the Respondent requested sporting sanctions to be imposed on the Claimant for
breach of contract during the protected period.
25.
On 13 May 2013, the Claimant presented his comments on the position of the
Respondent, insisting on his claim and all the allegations previously made.
Furthermore, the Claimant emphasized that the Respondent provided its position as
to the claim only on 27 March 2013, i.e. more than 4 months after the given deadline,
and therefore the position and counterclaim of the Respondent shall not be taken
into account by the DRC.
26.
Moreover, the Claimant reiterated having contacted the Respondent several times
and since all correspondence remained unanswered, he had no other choice than to
send the claim to FIFA on 24 September 2012. In this regard, the Claimant however
pointed out that even after having lodged the claim he wished to find an amicable
solution in the present matter and thus, contacted the country Q Football Association
on 10 October 2012, informing it about the claim lodged in front of FIFA. Equally, the
Claimant alleged having sent a further correspondence to the Respondent on 17
October 2012, by means of which he informed the Respondent that the situation
could still be settled if the Respondent would pay him the outstanding amount of
EUR 638,181, corresponding to EUR 390,000 as sign-on fee due in July 2012, and the
Player A, country M / Club S, from country Q / Club A, from country F
Page 7 of 18
monthly salaries for the months of August, September and October 2012, as well as
register him as a qualified Claimant for the Respondent by no later than 25 October
2012. The Claimant stated that simultaneously the Respondent was informed by FIFA
about the present claim and, considering it failed to provide its position within the
given deadline, he notified the Respondent about the termination of the contract on
12 November 2012. Additionally, the Claimant confirmed that his representative
travelled to country Q at the beginning of January 2013, in order to find an amicable
solution, however once again without success.
27.
Subsequently, the Claimant indicated that the Respondent violated the contract not
only by not paying him the remuneration stipulated in the contract but also by not
giving him the chance and the instruments to accomplish and render his services.
Further, the Claimant held that the Respondent’s allegations concerning the fact that
the minutes did not establish monthly instalments is false and are made with the only
intention to minimize its responsibility. In his support, the Claimant enclosed his bank
statements running from January to May 2012, according to which the Claimant was
paid every beginning of the month the amount of EUR 91,000.
28.
Equally, the Claimant declared that the Respondent cannot sustain that the payments
should have been outstanding more than three months to allow the termination,
since said practice is, in most cases, followed by the DRC in cases where a severe
offence was committed by a club, but it is not an imperative rule and is not included
in the Regulations.
29.
Further, the Claimant held that, considering the fact that he had notified the
Respondent several times about the due salaries and that he was not paid as of July
2012 as well as that he officially terminated the contract only on 12 November 2012,
he anyway respected the three months’ time, should these be considered by the DRC
as necessary. In the same context, the Claimant affirmed that the Respondent cannot
accuse him of having breached art. 10 of the contract by not respecting the 15 days’
writing notice. Additionally, the Claimant reiterated that the Respondent never
answered any of his notifications.
30.
On account of all the above, the Claimant amended his claim, claiming anew the total
amount of EUR 3,028,524, adding to his original claim for the amount of EUR
2,993,997, interest at a rate of 5% p.a. as from the date of the termination of the
contract, i.e. 12 November 2012, and the amount of EUR 34,527, corresponding to
different expenses that the Claimant allegedly had to bear, due to the premature
termination of his contract, detailed as follows:
- EUR 2,900, for flight tickets for him and his family
- EUR 3,100, as moving costs
- EUR 2,654, for the rental car he had in country F until his car was transported
back from country Q
Player A, country M / Club S, from country Q / Club A, from country F
Page 8 of 18
- EUR 9,905, for the car transport from country Q to country F;
- EUR 15,968, as school fees for his children
31.
On 23 June 2013, the Respondent provided its comments to the response presented
by the Claimant as well as to his amended claim, reiterating all the allegations made
in its first reply.
32.
Furthermore, the Respondent wished to stress that in his response the Claimant has
allegedly not contested many of the Respondent’s arguments and has deliberately
omitted to make reference to facts that could rebut his false allegations and
accusations against the Respondent.
33.
Consequently, the Respondent pointed out that in the correspondence dated 12 and
24 September as well as 10 October 2012, the Claimant declared that his salary for the
month of June 2012 was not paid to him, and only via the correspondence dated 18
October 2012, the Claimant confirmed the truth, claiming as first due instalment the
salary for the month of July 2012. The Respondent affirmed as well that the bank
statements provided by the Claimant show that his salary for the month of June 2012
was duly paid. According to the Respondent, the Claimant was requesting the salary
for the month of June 2012, even though it was never outstanding, because he
wanted to “exercise pressure to the [Respondent] by invoking at that time that three
month salaries were allegedly due”.
34.
Equally the Respondent held that the Claimant omitted to mention that the
Respondent paid him four flight tickets for his wife and his children (country Q –
country F), scheduled on 23 August 2012, paid by the Respondent on 17 August 2012,
for the total amount of currency of country Q.
35.
Additionally, the Respondent alleged that, despite the bad faith and non-cooperation
from the Claimant’s side, on 20 December 2012 it requested the country Q National
Bank to pay him the amount of EUR 845,000, but since the Claimant left the country
it had no other option than try to settle the matter amicably by contacting the
Claimant’s representative. Moreover, the Respondent insisted that the Claimant
should have returned to country Q to amicably settle the matter and that the
Claimant did not provide any explanation for the non-compliance of the terms
allegedly agreed in the meeting held in January 2013.
36.
The Respondent further declared that the crucial date to be considered as notification
of the termination of the contract is 20 September 2012 or in any case at the latest 24
September 2012, date when the claim of the Claimant was lodged. Equally, the
Respondent alleged that the Claimant’s notification dated 12 November 2012 does
not have any particular legal effect, since the Claimant considered the contract as
terminated already on the above-mentioned date(s).
Player A, country M / Club S, from country Q / Club A, from country F
Page 9 of 18
37.
In conclusion, the Respondent insisted on its counterclaim as well as declared having
never deprived the Claimant of his benefits stipulated in the contract, such as
accommodation, transportation and flight tickets to his family.
38.
Equally, the Respondent asserted that the new documentation and claims lodged by
the Claimant concerning accommodation, transportation and travel allowances shall
be rejected since such benefits are related to the expatriation of the Claimant to
country F and not the performance of his services. Finally, the Respondent affirmed
that such requests are not relevant since the Claimant is the party in breach and there
is no provision in the contract stipulating that the Respondent would have to cover
said expenses.
39.
Finally, the Claimant informed FIFA that he had not entered in any new employment
relationship after the breach of the contract with the Respondent. In this regard, the
Claimant declared having tried to sign an employment contract with the Club L, from
country F, but without success.
40.
According to the information contained in the transfer matching system (TMS), the
Claimant concluded a contract with the Club N, from country F, valid as from 1
January 2013 until the end of the season 2012/2013, according to which the Claimant
would be entitled to the following remuneration in accordance with the “general
annex nº 1 of the Professional Football Charter” (the Annex):
- a monthly remuneration of EUR 2,800 gross;
- an attendance bonus, according to art. 763 of the Annex;
- a bonus for results and qualifications, according to arts. 764 and 766 of the
Annex;
- a bonus for the ranking at the end of the competition, according to art. 765 of
the Annex.
41.
The transfer instruction in TMS contains the Claimant’s international transfer
certificate (ITC) issued by the country Q Football Association to the country F Football
Federation.
42.
Consequently, the counterclaim was sent for the Club N, from country F, for its
position. Club N held that the Claimant was a former player of Club N and started
training with the reserve team and it decided to offer him a professional contract. In
this context, Club N acknowledged having concluded an employment contract with
the Claimant, but since the Claimant was not in shape anymore he could not play in
the country F Professional Football League (hereinafter: the League) and, by mutual
agreement, the parties decided not to register the contract. Moreover, Club N insisted
that the contract was never registered by the League and was never enforceable, and
that it was null and void and not in conformity with country F law. In its support, it
enclosed a request signed by the Claimant addressed to the League, requesting that
Player A, country M / Club S, from country Q / Club A, from country F
Page 10 of 18
the contract not be registered and indicating that he is not under contract with Club
N.
43.
Upon request to confirm the registration of the Claimant with Club N or any other
affiliated club, the country F Football Federation confirmed the following:
- On 1 January 2013, Club N introduced the transfer of the Claimant in TMS with
the instruction “Engaged out of contract free of payment”;
- On 14 January 2013, the country F Football Federation acknowledged receipt of
the ITC issued by the country Q Football Federation;
- On 14 January 2013, the country F Football Federation informed the League of
the receipt of the ITC of the Claimant.
44. Upon new request regarding the registration of the Claimant with Club N or any other
affiliated club, the country F Football Federation stated inter alia that the Claimant is
unemployed and is not registered with Club N nor with any other club affiliated to the
country F Football Federation.
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 24 September
2012. 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).
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 conjunction 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 F-country M player and a country Q club, with the involvement of a country F
club.
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 2012),
and considering that the present claim was lodged on 24 September 2012, the 2010
edition of the Regulations on the Status and Transfer of Players (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
Player A, country M / Club S, from country Q / Club A, from country F
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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,
arguments and documentary evidence which it considered pertinent for the
assessment of the matter at hand.
5.
In this context and first of all, the DRC emphasized that it falls within its scope of
discretion to analyse, on a case-by-case basis, whether submissions from parties which
have been remitted to FIFA after the deadline set by the FIFA administration. In this
respect, the Chamber reasoned that, considering the specificities and the importance
of the present matter, it must take all of the Respondent’s submissions into account
when deliberating on the present matter.
6.
The aforementioned having been established, the Chamber recalled that the parties
had signed an employment contract and the minutes valid as from 1 July 2011 until 1
July 2013, in accordance with which the Claimant was entitled to receive, inter alia, a
basic annual salary in the amount of EUR 1,300,000.
7.
In continuation, the members of the Chamber took into account that, on 24
September 2012, the Claimant lodged a claim before FIFA against the Respondent for
the breach of the contract, while the Respondent rejected the claim and lodged a
counterclaim against the Claimant, alleging that the Claimant had terminated the
contract without just cause.
8.
Considering the parties’ divergent positions, the DRC proceeded to analyse the
arguments of both parties.
9.
In this respect, the Chamber took note that, according to the Claimant, the
Respondent failed to pay 30% of the annual salary due at the beginning of the
season 2012/2013, as established in the minutes. Moreover, after the replacement of
the coach, the Respondent allegedly notified him that he was no longer included in
the projects of the team and proposed to mutually terminate the contract offering
five monthly salaries, which was rejected by the Claimant since he considered that he
should receive twelve monthly salaries as compensation. After that, according to the
Claimant, the Respondent excluded him from the team, not inviting him for a training
camp in Spain and excluding him from the club’ website.
10.
On 3 August and 29 August 2012, the Claimant contacted the Respondent insisting on
the fulfilment of the contract and, subsequently, contacted the Respondent on 12
September 2012, putting the Respondent in default and requesting the payment of
his salary due since July 2012.
Player A, country M / Club S, from country Q / Club A, from country F
Page 12 of 18
11.
Subsequently, the Claimant lodged the claim before FIFA on 24 September 2012 and,
since no answer was submitted by the Respondent within the original deadline
granted for its response, he officially terminated the contract on 12 November 2012
invoking just cause.
12.
The Respondent, on the other hand, alleged that during the season 2011/2012 the
Claimant did not perform as expected, but he still received his salaries on time.
Moreover, according to the Respondent, the Claimant sustained an injury and the
parties agreed that he would be replaced in the list of the first team during the
treatment needed.
13.
In addition, the Respondent held that at the end of the season 2011/2012 the parties
initiated negotiations to terminate the contract amicably, but that the Claimant did
not accept its offer. The Respondent further affirmed that, in any case, the Claimant
did not have just cause to terminate the contract, because he only asked for the
payment of outstanding amounts on 12 September 2012 and gave the Respondent a
short deadline of eight days to remedy its default. Therefore, by the time the
Claimant considered the contract terminated, i.e. 20 September 2012, only two
monthly salaries were allegedly outstanding.
14.
Finally, the Respondent lodged a counterclaim alleging that the Claimant breached
the contract and asking for the amount of EUR 1,374,506 as compensation.
15.
Bearing in mind these contradictory positions and considering all the facts and
evidence, the Chamber highlighted that the underlying issue in this dispute,
considering the claim and the counterclaim, was to determine when the employment
contract was terminated as well as which party was responsible for the early
termination of the contractual relationship in question and, finally, whether the
latter had been unilaterally terminated with or without just cause. The Chamber also
underlined that subsequently, if it were found that the employment contract was
terminated without just cause, it would be necessary to determine the consequences
for the party that terminated the relevant employment contract.
16.
The Chamber considered that it remained undisputed that the Claimant did not
receive any remuneration since the beginning of the season 2012/2013 as well as that
the Claimant was not registered for the Respondent for the relevant season.
17.
At this point, the Chamber considered that, regardless the fact that the Claimant
terminated the contract officially in writing on 12 November 2012 after the claim was
lodged, the Respondent had failed to register the Claimant for the season 2012/2013.
Player A, country M / Club S, from country Q / Club A, from country F
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18.
At this point, the members of the DRC first of all considered important to point out,
as has been previously sustained by the DRC, that among a player’s fundamental
rights under an employment contract, is not only his right to a timely payment of his
remuneration, but also his right to access training and to be given the possibility to
compete with his fellow team mates in the team’s official matches. In this context, the
DRC emphasized that by refusing to register a player, a club is effectively barring, in
an absolute manner, the potential access of a player to competition and, as such,
violating one of his fundamental rights as a football player.
19.
Therefore, the members of the DRC concluded that the Respondent effectively
prevented the Claimant from being eligible to play for it during the season
2012/2013, and thus, that the Respondent terminated the contract at the beginning
of the said season.
20.
Having established that the Respondent unilaterally terminated the contract at the
beginning of the season 2012/2013, the Chamber went on to consider whether such
termination was with or without just cause. As mentioned previously, the sole fact of
not registering the Claimant, thus preventing him from rendering his services to the
Respondent, constitutes in itself a serious breach of contract.
21.
Furthermore, it is uncontested that the Respondent did not pay the Claimant the 30%
of his annual salary in the amount of EUR 390,000 due at the beginning of the season
2012/2013, which also clearly constitutes a breach of contract. In any case, the
Respondent did not provide any justification for the non-payment of this amount.
22.
In light of the aforementioned, the DRC came to the unanimous conclusion that the
Respondent had terminated the contract with the Claimant without just cause at the
beginning of the season 2012/2013 by not registering him and failing to pay the 30%
of his annual salary as agreed in the minutes.
23.
Having established that the Respondent terminated the contract without just cause,
the Chamber focussed its attention on the consequences of such termination. Taking
into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive an amount of money from the Respondent as
compensation for the termination of the contract with just cause in addition to any
outstanding payments on the basis of the relevant employment contract.
24.
In this context, the DRC took note that the Claimant was entitled to receive the
amount of EUR 1,300,000 as annual remuneration, with 30% of such amount being
payable at the beginning of each season, i.e. EUR 390,000.
25.
Consequently, on account of the above and in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the Respondent is liable
Player A, country M / Club S, from country Q / Club A, from country F
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to pay to the Claimant the amount of EUR 390,000 in connection with the
remuneration due to the Claimant in accordance with the employment contract until
its early termination by the Respondent, corresponding to 30% of the annual salary
due at the beginning of the season 2012/2013.
26.
In addition, the members of the DRC acknowledged that the Claimant requested the
reimbursement of some flight tickets for himself and for his family. In this respect, the
Chamber took note that the Claimant was entitled to receive flight tickets in
accordance with the contract and the minutes. In this context, the DRC took into
account that the Claimant provided evidence of the amounts paid for the flight
tickets and thus, decided that the Claimant is entitled to receive the amount of EUR
2,700 as flight tickets.
27.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest on the aggregate amount of EUR 392,700 at the rate of
5% p.a. as of 24 September 2012.
28.
In continuation, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, the members
of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including, in particular, the remuneration and other
benefits due to the player under the existing contract and/or the new contract, the
time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
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.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body.
Player A, country M / Club S, from country Q / Club A, from country F
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31.
The members of the Chamber then turned their attention to the remuneration and
other benefits due to the Claimant under the existing contract and/or the new
contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of art.
17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and the new contract in the calculation of the amount of
compensation.
32.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from its
date of termination without just cause, i.e. beginning of the season 2012/2013, and
concluded that the Claimant would have received in total EUR 909,997, corresponding
to eleven monthly salaries in the amount of EUR 82,727 each, as remuneration, had
the contract been executed until its expiry date. Consequently, the Chamber
concluded that the amount of EUR 909,997 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case at
hand.
33.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another Respondent during the relevant period of time,
by means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
34.
The Chamber recalled that the Claimant remained unemployed until this date (cf.
points. I.39 to 44 above) and has not been able to mitigate his damages.
35.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
the amount of EUR 909,997, which was considered reasonable and proportionate as
compensation for breach of contract in the case at hand.
36.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation, i.e. EUR 909,997 as of the date of the present decision, i.e. 12
December 2013 until the date of effective payment.
37.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for image and career damages in the amount of EUR 1,000,000 as well
as for moral damages in the amount of EUR 500,000. In this regard, the Chamber
Player A, country M / Club S, from country Q / Club A, from country F
Page 16 of 18
deemed it appropriate to point out that the request for said compensation presented
by the Claimant had no legal basis or evidence that demonstrated the damage
suffered or its quantity. Therefore, the DRC decided that the Claimant’s relevant
request shall be rejected.
38.
In addition, in the same context, the DRC analysed the request of the Claimant for
eight months of accommodation and car and for five flight tickets in the respective
amounts of EUR 32,000, EUR 12,000 and EUR 100,000. In this respect, the members of
the DRC considered that, although the contract entitled the Claimant to a car, a
furnished apartment and flight tickets, the contract did not specify an amount and
these rights were meant to be used during the execution of the contract. Therefore,
the DRC also decided to reject that particular request.
39.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to procedural costs in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
40.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant is rejected. Equally and
considering that the Respondent was, overall, found to be in breach of contract
without just cause, the counterclaim of the Respondent is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player A, is partially accepted.
2.
The Respondent/Counter-Claimant, country Q Sports Respondent, has to pay to the
Claimant/Counter-Respondent, within 30 days as from the date of notification of
this decision, outstanding remuneration in the amount of EUR 392,700 plus 5%
interest as of 24 September 2012 until the date of effective payment.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent,
within 30 days as from the date of notification of this decision, compensation for
breach of contract in the amount of EUR 909,997 plus 5% interest p.a. on said
amount as from 12 December 2013.
4.
In the event that the amounts due to the Claimant/Counter-Respondent in
accordance with the above-mentioned numbers 2. and 3. are not paid by the
Respondent/Counter-Claimant within the stated time limits, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee for consideration and
a formal decision.
Player A, country M / Club S, from country Q / Club A, from country F
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5.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
6.
The claim of the Respondent/Counter-Claimant is rejected.
7.
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.
*****
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
Player A, country M / Club S, from country Q / Club A, from country F
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