Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 1 December 2015
in the following composition:
Geoff Thompson (England), Chairman
John Bramhall (England), member
Leonardo Grosso (Italy), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C, country D,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 28 June 2012, the player from country B, Player A (hereinafter: the Claimant or
the player), and the club from country B, Club C (hereinafter: the Respondent or the
club), signed an employment contract valid as from 1 July 2012 until 31 May 2014.
According to the Transfer Matching System (TMS), the 2012/2013 season started on 15
September 2012 and ended on 15 May 2013, and the 2013/2014 season started on 1
September 2013 and ended on 20 May 2014.
2.
In accordance with the employment contract, the Claimant was inter alia entitled to
receive total remuneration of EUR 5,000,000, as follows:
a. an advance of payment of EUR 500,000 for “each season 2012/2013 and the
2013/2014”.
b. for the 2012/2013 season:
i. EUR 295,454 for July 2012;
ii. a monthly EUR 170,454 from 1 August 2012 until 31 May 2013.
c. for the 2013/2014 season:
i. EUR 281,250 for June 2013;
ii. a monthly EUR 156,250 from 1 July 2013 until 31 May 2014.
3.
The contract inter alia provides for other benefits such as a car, flight tickets “for the
player 2 business class per season (Country E-Country D-Country E) for his wife and
three children under 18 year One Ticket in the season for each year”. No monthly
housing allowance is provided for.
4.
Article 5.1 of the contract provides “if the player violates any of the obligations to
which he is subject [to] under this contract, the [club] may impose the following
penalties:
a. Caution; b. Fine up to 5000 EURO (currency/amount) FIVE THOUSAND EUR
(max. one basic monthly salary); c. Suspension; d. Expulsion”.
5.
Article 10 provides for “Termination by the Club or the Player” as follows:
a. Article 10.1: “[Club] and the Player may terminate this Contract before its
expiring term, by mutual agreement”.
b. Article 10.2: “[Club] and the Player shall be entitled to terminate this
Contract, before its expiring term, by fifteen (15) days’ notice in writing for
just case according with the FIFA Regulations governing this matter as well as
the Law of the State of country D”.
c. Article 10.3 “When the termination of the Contract is not due to a just cause
or a mutual agreement between the Parties concerned, [Club] or the Player
shall be entitled to receive from the other party in breach of the Contract a
compensation for a net amount of:
- to the [Club]: total amount of the contract;
- to the player: remaining salaries of the same season.”
Player A, country B / Club C, country D
Page 2 of 15
6.
On 27 March 2013, the Disciplinary Committee of the Football Association of country
D (hereinafter: Football Association of country D) imposed a fine of 380,000 and a ten
match ban (hereinafter: Football Association of country D fine) on the Claimant for
assaulting a competitor during a match.
7.
On 28 March 2013, the Claimant formally put the Respondent in default of “the
amount for the unpaid salaries”.
8.
On 17 April 2013, the Football Association of country D Appeals Committee reduced
the Football Association of country D fine to 300,000 and an eight match ban.
9.
In a letter dated 24 April 2013, the Respondent allegedly notified the Claimant of the
deduction of one month’s salary in light of his behaviour in the match of 19 March
2013, and the fine and ban imposed by the Football Association of country D (cf.
points I.6 and I.8 above). In addition, the Respondent will deduct the amount to be
paid in relation to Football Association of country D fine from the Claimant’s salary
and will pay the Football Association of country D directly (cf. points I.17 and I.19
below).
10.
In a letter dated 25 April 2013, the Respondent allegedly notified the Claimant of the
termination of the employment contract which was to take effect on 28 April 2013
without giving a reason (cf. points I.17 and I.19 below).
11.
On 20 July 2013, after having been informed not to train (cf. point I.16 below) the
Claimant contested the termination of the employment contract by the Respondent,
stating in particular that the Penalty Notice (cf. point I.9 above) and the Notice of
Termination (cf. point I.10 above) were never notified to him (cf. point I.17 below). In
addition, he considers the termination to be unfounded and is a clear attempt to
avoid paying all outstanding amounts. In this letter, he puts the Respondent in
default of EUR 2,081,128 and offers his services to the Respondent. The Claimant put
the Respondent in default of the following amounts: a. EUR 1,193,178 pertaining to
salaries of November 2012 to May 2013; b. EUR 500,000 pertaining to the advance of
payment for 2013/14 season; c. EUR 281,250 pertaining to the salary of the first
month of 2013/2014 season; d. EUR 94,000 for housing, and EUR 12,700 as flight
tickets.
12.
On 14 March 2014, the Claimant lodged a claim before FIFA against the Respondent
asking that he be paid a total of EUR 3,709,653 plus 5% interest p.a. as from 16 July
2013, broken down as follows:
a. Outstanding remuneration in the total amount of EUR 1,022,308, as follows:
i. salary of April 2013 with deduction of what the Claimant deems to be
the appropriate fine (cf. point I.22 below), i.e. EUR 5,000: EUR 170,454
– EUR 5,000 = EUR 165,454;
ii. advance of payment for 2013/14 season EUR 500,000;
iii. salary of June 2013: EUR 281,250;
Player A, country B / Club C, country D
Page 3 of 15
iv. pro-rata salary for July 2013, i.e. (EUR 156,250 / 31 days) x 15 days =
EUR 75,604.
b. Compensation for breach of contract, amounting to the residual value of the
contract for a total of EUR 1,643,145, as follows:
i. pro-rata salary for July 2013, i.e. EUR 156,250 – EUR 75,604 = “EUR
80,645”;
ii. Salaries running from August 2013 until May 2014 in the total amount
of EUR 1,562,500;
c. Compensation in light of the specificity of sport corresponding to six monthly
salaries of EUR 156,250 for a total of EUR 937,500.
d. The Claimant further claims “housing allowance for the first season” in the
total amount of EUR 94,000 and reimbursement for costs of flight tickets in
the total amount of EUR 12,700.
13.
In his claim, the Claimant explains that during a match on 19 March 2013, an incident
involving punching a competitor lead to the Claimant being sent off, and a decision
subsequently being made by the disciplinary committee of the Football Association of
country D on 27 March 2013 (cf. point I.6 above). The Claimant claims that after said
decision was taken, he put the Respondent in default on 28 March 2013 (cf. point I.8
above). The Respondent and the Claimant then allegedly decided that they would
both appeal the decision. On 17 April 2013, the Football Association of country D
reduced the fine (cf. point I.7 above) and the Claimant alleges he trained with the
Respondent as per usual, even though he was banned from matches. He recalls that
at that time the Respondent owed him salaries from November 2012 until March
2013.
14.
The Claimant claims that on 17 June 2013 he left for holiday and returned on 30 June
2013, claiming he trained normally from that point onward.
15.
On 2 July 2013, the Claimant claims his agent was in contact with representatives of
the Respondent to discuss the issue of overdue payables amounting to EUR 2,081,128
(cf. point I.11 above). During a meeting on 8 July 2013, the Claimant’s agent was
handed, allegedly for the first time, a document dated 24 April 2013 entitled “Penalty
Notice” (cf. point I.9 above), and a second dated 25 April 2013 entitled “Notice of
Contract Termination” (cf. point I.10 above).
16.
The Claimant claims that during the time he was training normally with the
Respondent he was sent two text messages, allegedly by a representative of the
Respondent, on 15 July 2013 informing him he was no longer allowed to train with
the Respondent. The first message states “Hi Player A just now I got call from Our
lower [lawyer] regarding you situation and I am very sorry to tell you that stop trainin
with the team until we solve the situation, thank you, sincerely, Mr. G”. The second
states “dear Player A today our manager went to Football Federation and met Mr. F.
Player A, country B / Club C, country D
Page 4 of 15
Mr. F talked to your agent and have him the deal. He (Mr. F) told us that you can’t
participate in the training any more. This is for your information. Thanks dear”.
17.
On 20 July 2013, the Claimant contested the legal basis for the termination which he
allegedly saw for the first time on 8 July 2013 (cf. points I.11 and I.15 above). On 30
July 2013, the Respondent replied by claiming it had sent the Notice of Termination
via e-mail to the Claimant’s agent on 28 April 2013, stating that the Claimant had
requested that such correspondence be notified via the agent (cf. point I.27 below).
The Respondent also clarifies that termination was due to the eight match ban and
was pursuant to article 10.3 of the contract (cf. point I.5.c. above). Furthermore, the
Respondent states that the undisputed training sessions were “an exceptional gesture
of good will and intention to help you in your future career” and was void of any
legal consequence in relation to the contract which was allegedly terminated on 28
April 2013. The Respondent then provides details of payments made on 22 July 2013
for outstanding salaries. It claims to have paid:
a. EUR 852,270 as outstanding salaries from November 2012 until April 2013,
with the deduction of April 2013 pursuant to the penalty imposed on 24
April 2013 (cf. point I.9 above).
b. EUR 170,454 corresponding to compensation for the termination of the
employment contract pursuant to article 10.3 of the contract (cf. point I.5.c.
above), i.e. the contractual entitlements until the end of the 2012/2013
season.
18.
In the same letter, the Respondent further claims that no accommodation was
provided for in the contract, and that it will reimburse the flight tickets requested. It
finally refers the Claimant to the content of the notice of termination dated 25 April
2013 in relation to the player’s offer to return to the Respondent, and explicitly
rejects said offer.
19.
On 27 August 2013, the Claimant replies to the Respondent and states that no notice
of termination of contract was sent to any of his addresses, and even if such a notice
was sent by e-mail to his agent it would not bear any legal consequence as the
notification should have been made directly to the Claimant. The Claimant also
categorically denies having ever communicated his will to have all correspondence
sent to his agent. The Claimant puts the Respondent in default of EUR 1,044,200 and
asks once again to be reinstated into the team. In its reply on 11 September 2013, the
Respondent referred to its correspondence of 30 July 2013 (cf. point I.17 above) and
stated that the player has contested neither the payments made, nor the justifications
given for each payment, and in its view, the Claimant has therefore accepted them
and the matter is settled.
20.
In reply to the Respondent’s letter, on 26 October 2013 the Claimant informed the
Respondent that the payments made on 22 July 2013 are considered as an advance of
payment on the amounts already owed to him, and that the Respondent still owes
him compensation for breach of contract. The Respondent never replied to this
correspondence.
Player A, country B / Club C, country D
Page 5 of 15
21.
The fact that the Claimant trained with the Respondent according to his regular
schedule the during 2012/2013 season until 15 July 2013, even after the alleged notice
of termination, was allegedly never contested by the Respondent and demonstrates
that it tacitly accepted the continuation of the employment contract under its
original terms. The Claimant further argues that the fact that the Respondent and the
Claimant both appealed the Football Association of country D fine demonstrates that
the Respondent did not deem the events of the match of 19 March 2013 to be just
cause to terminate the contract. He alleges that it was only after the appeal “failed”
that a penalty was imposed by the Respondent, which was in addition to the fine
already imposed by Football Association of country D, and was therefore contrary to
the legal principle of “ne bis in idem”.
22.
In relation to the additional fine imposed by the Respondent dated 24 April 2013, the
Claimant contests its validity on the basis that it was never notified to him and was in
clear violation of clause 5 of the employment contract (cf. point I.4.b above). The
Claimant also argues that by unilaterally imposing the fine and deducting one
month’s salary, the Respondent sought to mitigate the huge amounts already owed
to the Claimant. Therefore, the penalty imposed on him by the Respondent should
have been for a maximum of EUR 5,000, and he is therefore owed the salary for April
2013 minus EUR 5,000, amounting to EUR 165,454.
23.
The Claimant acknowledges the payments made to him by the Respondent on 22 July
2013, which he notes were made during the 2013/2014 season. In relation to the
payment of EUR 170,454, corresponding to his May 2013 salary, and in particular the
content of article 10.3 (cf. point I.5.c. above), the Claimant argues that by making this
payment, the Respondent tacitly acknowledges having terminated the employment
contract without just cause. The Claimant continues by stating that if article 10.3 is
valid, then all salaries due for 2013/2014 season should be paid as compensation. He
does, however, argue that the clause is invalid and unenforceable on the basis that it
is unbalanced and potestative.
24.
The Claimant argues that the Respondent regularly failed to pay the salaries owed to
him on time pointing to the fact that it was only on 22 July 2013, after two default
notices (cf. points I.8 and I.11 above) that he was paid the outstanding remuneration
owed from November 2012 until March 2013.
25.
In its reply to the Claimant’s claim, the Respondent first seeks to determine that the
termination of 25 April 2013 was with just cause, notably in light of the Claimant’s
conduct during the match of 19 March 2013 which also appeared in the global press.
As a result, the damage caused to the Respondent’s image meant the trust between
the parties was irreparable. It also claims that the pictures submitted by the Claimant
to substantiate his argument (cf. point I.14 above) were procured illegally, without
the Respondent’s permission and should be disregarded. The Respondent also states
that said pictures are undated and do not prove a continuity in training.
26.
In addition, the Respondent argues that the Claimant’s violations of his obligations
leading to the fine were also made in violation of the employment contract, which
meant that it was through the Claimant’s own fault that the Respondent was
deprived of his services. The Respondent claims that the statement it unilaterally
Player A, country B / Club C, country D
Page 6 of 15
27.
deducted 300,000 and one monthly salary was wrong as the only amount deducted
was allegedly the fine the Respondent had imposed, i.e. April 2013 salary.
In relation to the Claimant’s statement that he had never expressly asked for
correspondence to be sent to his agent, the Respondent submits a press article which
quotes the Claimant stating “it is my agent who takes care of my extra-sportive
affaires”. In addition, the Respondent claims the Claimant refused to sign for the
delivery of the letter to his accommodation.
28.
The Respondent denies that the 2013/2014 season had started when the Claimant had
returned to training, because the notice of termination had validly been notified to
the Claimant on 28 April 2013, and that his return to training was only granted after
he had requested to be allowed to do so in order to keep fit, finalise his departure
and wait for his daughters to finish school at the end of June.
29.
With regards to the payments made on 22 July 2013, the Respondent states that the
payment of EUR 170,454 (cf. point I.17.b above) was made despite the fact that the
termination of the contract was allegedly made with just cause, “as a gesture of good
will towards him due to the fine previously imposed as well as in a spirit of good
cooperation in the light of the delays to his monthly salaries during the duration of
their employment relationship, and in set off of any other claim that the player might
have against the club”. The Respondent asserts that the argument that there was
double punishment is unfounded as it is “clear” the payment of 22 July 2013 was
made with only a deduction of one salary, and not of the Football Association of
country D fine as well.
30.
Finally, with regards to the validity of article 10.3 of the employment contract, the
Respondent claims that it is clearly a valid clause as it reciprocally provides for fair and
adequate compensation in case of breach of contract and that, in any case, no
compensation should be due as the termination was made with just cause.
31.
In his replica, the Claimant insists that the termination clause (cf. point I.5 above)
should be deemed null and void, and that even if it was valid, the Respondent would
have exercised it during the 2013/2014 season on 22 July 2013 (and not during the
2012/2013 season as the Respondent suggests), and consequently he is owed EUR
3,709,653 (cf. point I.12 above).
32.
Reiterating his arguments relating to the notification (cf. point I.22 above) the
Claimant also questions why he wouldn’t have been put in copy of the e-mail sent to
the agent, or why it wasn’t sent to one of the six available addresses. In this regard,
the Claimant notes that the DHL receipt submitted by the Respondent provides no
detail of delivery or reception of the package (cf. point I.28 above). The Claimant
provides a witness statement from his agent which clarifies that the Claimant never
held legal residence at his address, equally certifying that the e-mail address used by
the Respondent was not his certified e-mail.
33.
The Claimant further refutes the reasoning of the Respondent which claims that the
Claimant requested to train with the Respondent for an extended period in order to
wait for his children to finish their school year, noting that the school year finished in
the third week of June and starts during the first week of September.
Player A, country B / Club C, country D
Page 7 of 15
34.
The Claimant further claims that no mitigation should apply to the amounts to be
paid to him as he only found a new club in October 2014. He also claims that the
Respondent, through the Football Association of country D, sought to block his
registration with a new club.
35.
In its final response, the Respondent claims that the text messages (cf. point I.16
above) contain no reference to any employment contract or relationship and only
make reference to sporadic training. In particular it claims that the term “participate”
is “clear further indication of the sporadic nature of the training”.
36.
The Respondent seeks to disprove the witness statement of the agent (cf. point I.32
above) by demonstrating that the e-mail address to which the notification was made
to the agent was in use by him.
37.
The Respondent contests the claim of the Claimant that the termination clause was
exercised on 22 July 2013 and therefore during the 2013/2014 season, pointing to the
termination letter of 25 April 2013 with its subsequent alleged notification. The
Respondent states, that if the termination was without just cause, not further
compensation should be payable in light of article 10.3 (cf. point I.5 above).
38.
The Respondent claims that contrary to what the Claimant states, there is no legal
principle which prevents a disciplinary committee from imposing a fine in accordance
with the league’s regulations and the board of directors from imposing a fine on the
basis of the employment contract. These are two measures of different nature: one is
an internal disciplinary sanction in accordance with the employment contract, the
other is not a disciplinary sanction but an intrinsic right of any party to a contract
where there has been a breach of trust, therefore “ne bis in idem” cannot apply. Even
if the penalty is deemed to be in violation of the aforementioned legal principle, the
Respondent alleges it shouldn’t have to pay any additional compensation as it has
already paid an amount corresponding to one month’s salary to which he was not
entitled to because the Respondent did have just case to terminate.
39.
Finally, the Respondent questions why, after having allegedly received for the second
time on 8 July 2013, the notice of termination, the Claimant continued to train
sporadically. It claims that the Claimant only lodged a claim against the Respondent
after he was unable to find satisfactory employment elsewhere. It also finds it
suspicious that a player of such quality would take more than eighteen months to
find a new club.
40.
From the information contained on TMS, it appears the player only found
employment on 13 October 2014 with the club from country E, Club H.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was submitted to FIFA on 14
March 2014. Consequently, the 2012 edition of the Rules Governing the Procedures of
Player A, country B / Club C, country D
Page 8 of 15
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2015
edition), the Dispute Resolution Chamber is competent to deal with the matter at
stake, which concerns an employment-related dispute with an international
dimension between a player from country B and a club from country B.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players 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 (2015 edition) and considering that the present
claim was lodged in front of FIFA on 14 March 2014, the 2012 edition of said
regulations (hereinafter: the 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, and entering into the substance of the matter, the Chamber started by
acknowledging the aforementioned facts as well as the documentation contained in
the file.
5.
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.
6.
In this respect, the members of the Chamber acknowledged that it was undisputed by
the parties that they had signed on 28 June 2012 an employment contract valid from
1 July 2012 until 31 May 2014, in accordance with which the player was entitled to a
monthly salary of EUR 170,454 during the 2012/2013 season, and a monthly salary of
EUR 156,250 during the 2013/2014 season, in addition to an advance of payment of
EUR 500,000 for each of the 2012/2013 and 2013/2014 seasons. In addition, the player
was entitled to a salary of EUR 295,454 for the month of July 2012 and EUR 281,250
for the month of June 2013.
7.
The Chamber further observed that the Claimant held that the Respondent had
unilaterally terminated the contract on 8 July 2013 when the termination notice
dated 25 April 2013 was handed to his agent during a meeting relating to previously
overdue payables. For this reason, the Claimant lodged a claim in front of FIFA
against the Respondent requesting payment of EUR 3,709,653 as detailed in point I.12
above. On the other hand, the Chamber duly noted that the Respondent held having
duly terminated the employment contract with just cause on 25 April 2013, and that
it validly notified said termination to the player on that date.
8.
In view of the above, the Chamber first deemed it primordial to establish the exact
date of the termination of the contract in light of the parties’ diverging positions in
this regard.
Player A, country B / Club C, country D
Page 9 of 15
9.
In this regard, the DRC noted that the Claimant alleged having received the notice of
termination for the first time on 8 July 2013, and that between the time when the
notice of termination was allegedly written and notified to the Claimant, he had still
been training as per usual with the Respondent, until 15 July 2013. Furthermore, the
DRC took note that the Claimant considered that he was owed the salary payments
for April 2013 and for June 2013 as outstanding remuneration after having
acknowledged that all other outstanding amounts had been paid (cf. point I.24
above). The Claimant also claims that any notification of the imposition of a fine or
termination can not have been made through his agent, as this was not authorised by
the Claimant, and consequently could only take effect on 8 July 2014 when he was
made aware of the termination for the first time.
10.
On the other hand, the members of the Chamber noted that the Respondent asserted
having duly notified the notice of termination on 24 April 2014 when it allegedly sent
the notice of termination to the player’s agent. The Chamber recalled that the
Claimant asserted never having authorised his agent to receive the notification. In
this regard, the DRC took note that the Respondent considered that the statement of
the Claimant in the press (cf. point I.27 above) sufficed to permit the Respondent to
notify the notice of termination through the agent. The Chamber noted that the
Respondent can not seek to establish that it was authorised to notify the notice of
termination to the player via the agent, as the aforementioned press statement does
not, in the opinion of the Chamber, hold any legal bearing as it is not a clear legal
authorisation allowing the agent to be substituted to the player. In addition, the
members of the Chamber took care to note that any notice of termination should
directly be notified to the party concerned, in addition to being notified to any legal
representative of said party.
11.
In addition, the Chamber noted that the Respondent did not provide any
substantiated evidence to demonstrate that it had indeed notified the notice of
termination on the date that it alleged, i.e. 25 April 2014. Furthermore, the members
of the Chamber acknowledged that the Claimant had trained normally until 15 July
2013, as was confirmed by the Respondent through its argumentation. In this regard,
the DRC took note that the Respondent presented unconvincing argumentation
according to which it would have allowed the Claimant to train until the 15 July 2013
in order for the player to remain fit as he waited for the school year of his children to
end, without presenting any substantiated evidence. In light of all the above, the
Chamber determined that the date on which the Claimant was made aware of the
termination by the club was 8 July 2014, and consequently this date is to be held to
be the date of effective termination of the contract by the Respondent.
12.
In continuation, the members of the Chamber analysed whether said termination of 8
July 2013 was made by the club with or without just cause. In this regard, the
Chamber was eager to emphasise that only a breach or misconduct which is of a
certain severity justifies the termination of a contract without prior warning. In other
words, only when there are objective criteria which do not reasonably permit a party
to expect a continuation of the employment relationship between the parties, a
contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order for an employer to assure the employee’s fulfilment of
his contractual duties, such measures must be taken before terminating an
Player A, country B / Club C, country D
Page 10 of 15
employment contract. A premature termination of an employment contract can
always only be an ultima ratio.
13.
In view of the above, the Chamber was of the opinion that the Respondent, despite
the undisputed aggression of the Claimant against an opposing player (cf. point I.13
above), did not have just cause to prematurely terminate the employment contract
with the Claimant since there would have been more lenient measures to be taken
(e.g. amongst others, a suspension or a fine), in order to sanction the misconduct
which is at the basis of the termination of the employment contract by the
Respondent. The DRC, in particular, noted that a match ban and a pecuniary fine had
already been imposed on the Claimant by the Football Association of country D in
light of the incident (cf. points I. 6 and I.8 above) and that no other incident had
occurred since, which meant that the Respondent could not justify the imposition of a
new sanction, let alone the unilateral termination of the employment relationship.
14.
Overall, the Chamber decided that there was no just cause to unilaterally terminate
the employment relationship between the Claimant and the Respondent, and that
the Respondent had therefore breached the employment contract without just cause
on 8 July 2014.
15.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract without just cause
by the Respondent.
16.
First, the members of the Chamber concurred that the Respondent must fulfil its
obligations as per the employment contract up until the date of termination of the
contract in accordance with the general legal principle of “pacta sunt servanda”. In
this regard, the Chamber recalled the basic principle of the burden of proof, as
stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
claiming a right on the basis of an alleged fact shall carry the respective burden of
proof. In this context, the DRC agreed that the Respondent bears the burden of proof
in relation to any alleged payments or that the non-payment of amounts due was
somehow justified.
17.
In continuation, the members of the Chamber noted that the player acknowledged
the payments evidenced by the Respondent, made on 22 July 2013. The DRC noted
that these payments pertained to salaries due between November 2012 and April
2013, discounting the salary of April 2013 which was deducted as a penalty but that
these were not salaries being claimed for by the Claimant. With regard to the
deduction imposed by the Respondent, the members of the Chamber wished to point
out that the imposition of a fine, or any other available financial sanction in general,
shall not be used by clubs as a means to offset outstanding financial obligations
towards players. In light of the above, the Chamber decided to reject the
Respondent’s assertion that the deduction was valid.
18.
Consequently, the Chamber decided that the Respondent is liable to pay the Claimant
the remuneration that was outstanding at the time of the termination, i.e. the
amount of EUR 446,704 pertaining to the payments due for the salary of April 2013
(minus the deduction requested by the player) of EUR 165,454 and June 2013 of EUR
281,250.
Player A, country B / Club C, country D
Page 11 of 15
19.
Furthermore, the Chamber established that in accordance with the Claimant’s
request, in light of the terms of the contract (cf. point I.3 above) and its wellestablished jurisprudence, the Claimant should also be entitled to receive the amount
of EUR 12,700 from the Respondent corresponding to return flight tickets for the
player and his family between country E and country D
20.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. on the amount of EUR 459,404 as
from 16 July 2013 as requested.
21.
Having established the above, the Chamber turned its attention to the question of
the consequences of the unilateral termination of the contract by the Respondent on
8 July 2013.
22.
Consequently, the Chamber focused its attention on the question of whether or not
an amount of compensation for breach of contract is payable in the matter at hand.
In doing so, the members of the Chamber first recapitulated that, in accordance with
art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including in particular, the remuneration and
other benefits due to the Claimant under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years,
and depending on whether the contractual breach falls within the protected period.
23.
In application of the relevant provision, the Chamber held that it first had to clarify
whether the pertinent employment contract contains a provision by means of which
the parties had beforehand agreed on an amount of compensation payable by the
contractual parties in the event of breach of contract.
24.
In this regard, the Chamber noted that art. 10.3 of the contract establishes that
“When the termination of the Contract is not due to a just cause or a mutual
agreement between the Parties concerned, [Club] or the Player shall be entitled to
receive from the other party in breach of the Contract a compensation for a net
amount of:
- to the [Club]: total amount of the contract;
- to the player: remaining salaries of the same season.”
25.
In this context, the Chamber considered that such a clause, establishing different
financial consequences of a breach of contract without just cause for the Claimant
and the Respondent, consists in fact of a disguised way for the club to terminate the
contract at the end of each season, without any financial consequences, whereas the
player does not have such possibility. In other words, such clause provides the
Respondent with the unilateral option of reducing the term of the employment
relationship with the Claimant at its own will without paying any compensation. In
view of the foregoing, the Chamber concluded that the reciprocal obligations
deriving from art. 10.3. are so unbalanced for the Claimant and the Respondent that
they should be considered as null and void, and art. 10.3 shall not be applied for the
calculation of the amount of compensation due by the Respondent to the Claimant.
Player A, country B / Club C, country D
Page 12 of 15
26.
On account of the above, the Chamber established that the Respondent must still pay
an amount of compensation to the Claimant and that the DRC had to assess the
compensation due to the Claimant in accordance with the other criteria under art. 17
of the Regulations.
27.
Bearing the foregoing in mind, the Chamber proceeded with the calculation of the
remuneration payable to the Claimant under the terms of the employment contract
as from the date of termination, i.e. 8 July 2013 until 31 May 2015. The Chamber
concluded that the amount of EUR 2,218,750 corresponding to the residual value of
the contract, serves as the basis for the final determination of the amount of
compensation for breach of contract.
28.
In continuation, the Chamber verified whether the Claimant had signed an
employment contract with another club during the relevant period of time by means
of which he would have been able to mitigate his loss of income. According to the
constant practice of the Dispute Resolution Chamber, 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.
29.
In this regard, the members of the Chamber noted that the Claimant indicated that
he had not played professional football after the termination of the contract until 13
October 2014, and thus, had not been able to mitigate his damages.
30.
Consequently, on account of all the aforementioned considerations, the Chamber
decided that the Respondent must pay the amount of EUR 2,218,750 to the Claimant
as compensation for breach of contract, plus 5% interest p.a. from 14 March 2014, i.e.
the date of claim, as per the constant jurisprudence of the DRC.
31.
As to the Claimant’s request for housing allowances, the Chamber decided to reject
such a request as it was not substantiated and lacked any legal or regulatory basis.
32.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the outstanding amount of EUR 459,404 plus 5%
interest p.a. as from 16 July 2013 until the date of effective payment.
Player A, country B / Club C, country D
Page 13 of 15
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount of
EUR 2,218,750 plus 5% interest p.a. on said amount as from 14 March 2014 until the
date of effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated time
limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the 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:
Player A, country B / Club C, country D
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Markus Kattner
Acting Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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