Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 May 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
Caio Cesar Vieira Rocha (Brazil), member
on the claim presented by the player
A,
as Claimant / Counter-Respondent
against the club
FC D,
as Respondent / Counter-Claimant
regarding a contractual dispute between the parties
I.
Facts of the case
1.
The player, A (hereinafter: the Claimant / Counter-Respondent, or the Claimant),
born on 21 December 1984, and the club, FC D (hereinafter: the Respondent /
Counter-Claimant, or the Respondent), signed an employment contract
(hereinafter: the contract) on 24 June 2008, valid from 23 June 2008 until 30 June
2011, i.e. for the 2008/2009, 2009/2010 and 2010/2011 seasons.
2.
According to art. 3 of the contract, the Claimant was entitled to receive a monthly
salary of EUR 8,333.33 during the 2008/2009 season (i.e. EUR 100,000 for the entire
season). The contract stated that the Claimant’s annual salary would be increased
to EUR 110,000 for the 2009/2010 season and to EUR 120,000 for the 2010/2011
season. Furthermore, if the Claimant signed for an additional two years, his
annual salary would be EUR 130,000 for the 2011/2012 season and EUR 150,000 for
the 2012-2013 season. Art. 3 of the contract allowed for bonuses depending on
the player’s performance, whereas art. 4 of the contract stipulated that the club
should pay the player’s monthly salary by no later than on the fifteenth day of the
following month.
3.
In addition, art. 3 of the contract also stated that the Claimant would receive two
yearly return flight tickets from B to S and that “the club will provide USD 500 for
accommodation and the rest amount will be covered by the sportsman”.
4.
On 28 January 2009, the Claimant lodged a complaint with FIFA against the
Respondent, claiming that the latter had failed to comply with its contractual
obligations. The Claimant explained that since EUR 1 equated to 4,25, he should
have received the amount of 35,416.65 every month, whereas he claimed only to
have received a total amount of 80,613 for the period from 24 June 2008 until 14
January 2009. As proof of the aforementioned, the Claimant submitted a bank
statement showing that the following amounts had been paid to him:
- 16,587 on 21 August 2008
- 10,228 on 16 September 2008
- 15,700 on 29 September 2008
- 27,896 on 16 October 2008
- 10,202 on 12 November 2008
5.
The Claimant argued that, by January 2009, the Respondent had failed to pay him
his salary for September, October, November and December 2008 (i.e. four months
out of the first six months of the contract) and that, consequently, he had no
option but to terminate his contract with just cause. In turn, the Claimant
informed the Respondent in writing on 14 January 2009 that he had decided to
unilaterally terminate his contract and asked the Respondent to pay his
outstanding salary within three days.
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6.
In summary, the Claimant claimed his monthly salaries of September, October,
November and December 2008 (i.e. 4 x EUR 8,333.33, equating to a total amount
of EUR 33,333) from the Respondent as well as an additional USD 33,000,
representing, according to the Claimant, the overall match bonuses that he should
have received under the terms of the contract (i.e. 11 victories x USD 3,000). In
addition, the Claimant also claimed compensation for the alleged breach of
contract amounting to the remaining value of the contract (EUR 50,000 for the
remaining period of the 2008/2009 season and EUR 510,000 for the 2009/2010 to
2012/2013 seasons) as well as a further USD 100,000 for the moral and sporting
damage he claimed to have suffered.
7.
Furthermore, the Claimant requested FIFA to establish that he had unilaterally
terminated his contract with the Respondent with just cause and that he should
be free to sign a new employment contract with the club of his choice in order for
him to proceed with his football career.
8.
On 13 February 2009, the Respondent responded by explaining that, at the end of
2008, the Claimant had gone back to B apparently to receive medical treatment
during the winter holiday. The Respondent alleged that it had then contacted the
Claimant in B on 12 January 2009 in order to ask him to rejoin the team but,
apparently, without success.
9.
Furthermore, the Respondent argued that FIFA should not be competent to hear
the dispute since the Football Federation (hereinafter: the FF) had established an
independent commission in front of which disputes such as the present affair
could be dealt with, and since art. 9 of the contract stipulated that (quote) “If the
parties fail to reach an amiable agreement, then the disputes will be submitted in
view of settlement to the organisms with jurisdictional duties of the Football
Federation and of the Professional Football League”.
10.
As for the allegations made by the Claimant, the Respondent deemed that they
should be rejected as it claimed that it had completely fulfilled its side of the
contract and alleged that, out of the EUR 50,000 that it should have paid to the
Claimant for the period from July until December 2008 (i.e. the first six months of
the contract), EUR 49,998 had been duly paid to the Claimant. It explained that
the aforementioned amount had been paid either directly to the Claimant or
taken out of the Claimant’s salary to cover some of his expenses, which had not
been expressly stipulated in the contract.
11.
In this context, the Respondent submitted detailed documents apparently
demonstrating that EUR 42,458 had been paid directly to the Claimant and that
EUR 7,540 had been deducted from the Claimant’s salary, leading to a total
amount of EUR 49,998 paid to the Claimant or credited against his salary as
follows:
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12.
-
EUR 1,000 paid on 30/06/08 as advance payment of the contract (cash payment n. 1274)
-
EUR 1,000 paid on 30/06/08 as advance payment of the contract (cash payment n. 1275)
-
EUR 325 credited on 02/07/08 for the flight ticket paid out of the contract at the Claimants’ request
-
EUR 52 credited on 11/07/08 for phone calls (Claimant has a subscription of 35 EUR/month only)
-
EUR 1,050 credited on 05/08/08 as the amount paid on top of the USD 500/month granted under the
-
EUR 223 credited on 05/08/08 for meals at the hotel
contract for the rent of August, September and October 2008 (apartment rent is EUR 850)
13.
-
EUR 226 credited on 15/08/08 for phone calls
-
EUR 4,683 paid on 20/08/08 as payment of the contract (via bank transfer)
-
EUR 5,110 paid on 25/08/08 as advance payment of the contract (cash)
-
EUR 248 credited on 27/08/08 for the flight ticket of the Claimant’s girlfriend
-
EUR 330 credited on 27/08/08 for the flight ticket of the Claimant’s girlfriend
-
EUR 125 credited on 16/09/08 for phone calls
-
EUR 2,201 paid on 16/09/08 as advance payment of the contract (via bank transfer)
-
EUR 602 paid on 16/09/08 as advance payment of the contract (via bank transfer)
-
EUR 233 credited on 24/09/08 for meals at the hotel
-
EUR 243 credited on 14/10/08 for phone calls
-
EUR 7,404 paid on 16/10/08 as payment of the contract (via bank transfer)
-
EUR 468 credited on 28/10/08 in additional apartment rent costs for November 2008
-
EUR 318 paid on 06/11/08 as advance payment of the contract (cash)
-
EUR 78 credited on 12/11/08 for phone calls
-
EUR 397 credited on 24/11/08 representing the fine according to report 1813 (according to art. 3.3)
-
EUR 1,784 credited on 22/11/08 representing the fine according to report 1814 (according to art. 3.3)
-
EUR 460 credited on 10/12/08 in additional apartment rent costs for December 2008
-
EUR 1 credited on 10/12/08 for the Claimant’s work permit
-
EUR 2,616 paid on 11/12/08 as payment of the contract (via bank transfer)
-
EUR 246 credited on 15/12/08 for phone calls
-
EUR 398 credited on 15/12/08 for additional apartment costs (electricity, water etc.)
-
EUR 653 credited on 12/01/09 for phone calls
-
EUR 858 paid on 16/01/09 as payment of the contract (via bank transfer)
-
EUR 8,333 paid on 16/01/09 as payment of the contract (via bank transfer)
-
EUR 3,856 paid on 23/01/09 as payment of the contract (via bank transfer)
-
EUR 4,477 paid on 23/01/09 as payment of the contract (via bank transfer)
As for the bonuses claimed, the Respondent referred to art. 3 of the contract,
according to which it had no obligation to grant bonuses and held that the
Claimant’s performances from July to December 2008 did not justify the granting
of any bonus since he had only played in six official matches and for only 265
minutes in total. In conclusion, the Respondent considered that it was the
Claimant who had breached the contract and that it could in no way accept its
termination. Furthermore, it argued that since the contract had been concluded
on 24 June 2008, the breach occurred within the protected period. In view of the
foregoing, the Respondent apparently requested the FF, on 6 February 2009, to
suspend the Claimant.
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14.
Moreover, the Respondent deemed that it would only allow the termination of
the contract if it obtained compensation amounting to EUR 500,000 of the total
expenses incurred by the Respondent for the transfer of the Claimant from his
former club to the Respondent, i.e. EUR 550,000, which could be broken down as
follows: EUR 450,000 for the transfer of the Claimant to the Respondent, EUR
50,000 for the player’s agent’s commission pertaining to the aforementioned
transfer, and EUR 50,000 representing the financial rights paid to the Claimant for
half of the season and other expenses.
15.
In his second submission dated 3 March 2009, the Claimant responded by stating
again that the Respondent had not complied with its contractual obligations in
full as it had, inter alia, never paid the requested monthly salary on time and in
full, and that this gave him just cause to terminate the contract. In this respect, the
Claimant reiterated his claim that, for the period from 24 June 2008 until 14
January 2009, he had only received salary payments amounting to 80,613, which,
according to him, represented only two monthly salaries in Euros.
16.
Furthermore, the Claimant claimed that he was contractually entitled to two flight
tickets to B and that therefore, the deductions that the Respondent had made
from his salary were unjustified. He also refuted the allegation that the
Respondent had contacted him in B in order to ask him to rejoin the team. In
addition, the Claimant denied having received the cash payments mentioned in
the Respondent’s submission since such payments were not supported by any
documentary evidence and he only acknowledged the amounts paid via bank
transfer unto his bank account.
17.
Moreover, the Claimant rejected the Respondent’s assertion that it had rightly
deducted from his salaries various expenses not covered by the contract. In this
respect, he claimed that neither of the first two cash payment receipts for EUR
1,000 proved that the Claimant had received these amounts, as they had been
prepared solely by the Respondent. The Claimant also refuted the other evidence
submitted by the Respondent pertaining to his alleged phone costs, the rent for
the apartment, the hotel expenses, the financial penalties imposed on the
Claimant and the additional apartment costs. Finally, the Claimant denied having
received the cash payments of EUR 5,110 on 25 August 2008 and EUR 318 on 6
November 2008.
18.
The Claimant also argued that the payments made by the Respondent on 16 and
23 January 2009, just after the notice of termination had been sent by the former
to the latter, clearly demonstrated that the Respondent had wanted to minimise
its alleged contractual breach. In this respect, the Claimant sought to argue that
the fact that the aforementioned amounts had been paid should not mitigate the
Respondent’s responsibility since the contract had already been unilaterally
terminated on 14 January 2009. Finally, while entirely rejecting the Respondent’s
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position, the Claimant reiterated his claim and added that sporting sanctions
should be imposed on the Respondent in the form of a registration ban for new
players for two registration periods.
19.
In its duplica, the Respondent submitted documents apparently demonstrating
that the Claimant had, by his signature, acknowledged receipt of the amounts he
had denied receiving. Furthermore, and while recognising that there had been
some delays in the payments of the Claimant’s wages, the Respondent also stated
that it had made certain payments in advance and that consequently, the overall
payments schedule was nothing more than a usual situation in a football club’s
activity. Moreover, it argued that the Claimant had incorrectly calculated the
equivalent in euro of the received amounts, using a single exchange rate (4.25
/EUR), whereas the contract stipulated in art. 4 that “the sums owed to the
Sportsman in accordance with this contract will be paid for in, at the reference
rate of exchange of the National Bank on the payment date”. Furthermore, the
Respondent rejected the assertion that it had tried to minimise its responsibility
for the breach by paying certain amounts on 16 and 23 January 2009 as it argued
that the contract had not come to an end for the Respondent and that the
payments were made precisely in order to have the Claimant rejoin the team as
soon as possible.
20.
As for the costs deducted from the Claimant’s wages, the Respondent considered
that although the contract had not provided for the deduction of costs caused by
the Claimant, neither had it stated that these costs would have to be borne by the
Respondent. In continuation, it argued that by paying certain costs on behalf of
the Claimant, it had become the Claimant’s creditor and therefore had a
legitimate right to recuperate such amounts by deducing them directly from the
Claimant’s salary.
21.
Finally, the Respondent reiterated its previous claim that the only way it could
accept the termination of the contract would be to accept the transfer of the
Claimant for an amount covering at least the costs generated by the Claimant’s
transfer to its team. If this could not be agreed upon, the Respondent said that it
would have no other alternative but to claim damages from the Claimant for the
termination of the contract.
22.
Asked by FIFA to specify the amount it would claim as compensation, the
Respondent deemed that it would take into consideration the total amount of
EUR 500,000 and that, should the Claimant sign a new contract with another club,
the latter would be jointly and severally liable. Furthermore, the Respondent
asked for sporting sanctions to be imposed on the Claimant for his alleged breach
of contract.
23.
In his final submission, received on 13 April 2009, the Claimant completely rejected
the allegations of the Respondent and repeated that it had never complied with
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its financial obligations in full. While maintaining his previous financial claim
against the Respondent, the Claimant also deemed that the counter-claim for
compensation made against him by the Respondent should be rejected as it was
the Respondent itself which had been the party at fault and which had caused the
termination of the contract. Furthermore, the Claimant explained that since
leaving the Respondent in January 2009, he had not entered into any employment
relationship with any other club.
24.
According to a document submitted by the Respondent on 16 April 2009, the
disciplinary board of the Football Federation (FF) decided, on 11 March 2009, to
suspend the Claimant for a three-month period. In the same correspondence, the
Respondent also provided FIFA with some brief information on the disciplinary
board of the FF.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, it took note that the present matter
was submitted to FIFA by the Claimant on 28 January 2009. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) are
applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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
connection with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber (DRC) shall adjudicate on
employment-related disputes between a club and a player of an international
dimension. As a consequence, and since the Claimant holds the B nationality and
the Respondent is a R club, it was confirmed that the Dispute Resolution Chamber
is, in principle, the competent body to decide on the present litigation.
3.
However, the Chamber acknowledged that the Respondent had, during the course
of the proceedings, sought to argue that FIFA should not deal with the present
matter since the FF had established and independent commission in front of which
disputes such as the present one could be dealt with and, in particular, since art. 9
of the contract stipulated that in case the parties could not reach an amicable
agreement, the dispute should be submitted to the relevant decision-making body
at national level. This being said, the members of the Chamber also noted that the
Respondent had nevertheless provided its position and comments in response to
the Claimant’s specific claim as to the substance.
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4.
In this respect, the Chamber recalled that in accordance with art. 22 b) of the
Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber
is competent to deal with a matter such as the one at hand unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle of
equal representation of players and clubs, has been established at national level
within the framework of the Association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent
arbitration tribunal guaranteeing fair proceedings, the Chamber referred to FIFA
Circular no. 1010 dated 20 December 2005.
5.
In this respect, the Chamber noted that on the basis of the documentary evidence
provided by the Respondent, it could not be established beyond doubt that any
such arbitration tribunal respected the strict wording of art. 22 b) of the
Regulations on the Status and Transfer of Player. Consequently, and taking into
consideration the documentary evidence provided, the Chamber established that
the Respondent’s objection to the competence of FIFA to deal with the present
matter had to be rejected and that the Dispute Resolution Chamber is competent,
on the basis of art. 22 b) of the Regulations on the Status and Transfer of Players,
to consider the present matter as to the substance.
6.
Subsequently, the members of the Chamber analysed which edition of the
regulations should be applicable as to the substance of the matter. In this respect,
the Chamber took note, on the one hand, that the relevant contract at the basis of
the present dispute was signed on 24 June 2008 and, on the other hand, that the
claim was lodged with FIFA on 28 January 2009. In view of the foregoing, the
Chamber concluded that the current version of the regulations, the FIFA
Regulations on the Status and Transfer of Players (edition 2008; hereinafter: the
Regulations), is applicable to the case at hand as to the substance (cf. art 26 par. 1
and 2 of the Regulations).
7.
Once its competence and the applicable Regulations had thus been established,
the Dispute Resolution Chamber went on to deal with the substance of the matter
and started by acknowledging the above-mentioned facts as well as the
documentation of the submissions the Claimant and the Respondent had filed. In
particular, the Chamber noted that the Claimant and the Respondent had signed
an employment contract on 24 June 2008 valid from 23 June 2008 until 30 June
2011, i.e. for three sporting seasons.
8.
The Chamber also observed that while the Claimant had tried to argue
throughout the proceedings that he had a just cause to terminate the
employment contract he had signed with the Respondent, and that he should
therefore be granted compensation from the Respondent, the latter had sought
to argue in turn that the Claimant had unlawfully terminated the said contract
and that he should therefore be required to pay compensation. In this context, the
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Chamber concluded that it would have to decide, on the basis of the submissions
of the parties and, in particular, the documentary evidence filed, which of the
parties terminated the contract without just cause and which amount of
compensation ought to be eventually paid by the party at fault to the injured one.
More fundamentally, the members of the Chamber would also have to determine
at which point in time a party would be deemed to have had, or not to have had,
a just cause to terminate the relevant employment contract.
9.
With those considerations in mind, the Dispute Resolution Chamber started by
analysing the elements and arguments that the Claimant had raised in his
submissions as well as the Respondent’s arguments in contra. First of all, the
Chamber noted that the Claimant had insisted on the fact that since EUR 1
equated to 4,25, he should have received from the Respondent the amount of
35,416,65 every month on the basis of their contractual relationship, whereas he
had claimed only having received a total amount of 80,613 for the period from 24
June until 14 January 2009, i.e. as from the conclusion of his employment contract
until the day he unilaterally terminated his labour relationship with the
Respondent. This, according to the Claimant, meant that by January 2009, the
Respondent still owed him his salary for September, October, November and
December 2008, i.e. four months out of six. The Chamber noted that these
assumptions had eventually led the Claimant to unilaterally terminate his contract
with the Respondent by means of a letter sent to the latter on 14 January 2009.
10.
As to the actual amount the Claimant should have received from the Respondent
as remuneration under the contract, the Chamber could not agree with his
submission that a fixed and single exchange rate of EUR 1/ 4,25 should be applied
but found in favour of the Respondent which had argued that the Claimant had
incorrectly calculated the equivalent in EUR of the received amounts. In this
regard, the Chamber underlined that, on the basis of art. 4.2 of the contract, the
parties had agreed that the Claimant’s salary would be paid in taking into account
the official exchange rate of the R National Bank on the date each payment was
done and thus not a fixed exchange rate.
11.
In continuation, and taking into account that art. 4.1 of the contract stipulated
that each monthly salary should be paid to the player by no later than the 15th day
of the following month after the one for which the player has worked, the
Chamber remarked that the Respondent would have had to pay to the Claimant
the amount of EUR 8,333, converted in, by no later than 15 August 2009, a sum
which represented the salary of his first entire month of work under the
employment contract. In the same way, the Claimant would have received the
same amount by the 15th day of each following month. On that basis, the members
of the Chamber concluded that the total added sum paid to the Claimant, taking
into account a monthly salary of EUR 8,333 for the first year under the contract,
would have equalled to EUR 16,666 by 15 September 2008, to EUR 24,999 on 15
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October 2008, EUR 33,332 on 15 November 2009 and EUR 41,665 on 15 December
2008.
12.
Furthermore, the members of the Chamber agreed that since the Claimant had
used the exchange rate of 4.25/EUR 1 valid on 28 January 2009, i.e. after he had
unilaterally terminated his contract with the Respondent, he had come to the
erroneous conclusion that the amount of 80,613 paid onto his bank account only
represented about EUR 18,967, whereas such paid amounts represented, according
to the official exchange rate at the time of each of the relevant payments, in fact
EUR 21,911.
13.
The Dispute Resolution Chamber then turned its attention to the argument of the
Respondent according to which it had duly paid the relevant amounts to the
Claimant, albeit with some delays. First of all, and based on the documentation
provided, the Chamber noted that the Respondent had claimed having paid to the
Claimant the total amount of EUR 24,934 between the period from 30 June 2008
until 11 December 2008. The Chamber further noted that out of eight payments
allegedly made by the Respondent during the aforementioned period, the
Claimant had, in his second submission, sought to argue that he had never
received the four cash payments apparently paid on 30 June 2008 (two payments
of EUR 1,000 each), 25 August 2008 (one payment of EUR 5,110) and 6 November
2008 (one payment of EUR 318). In this respect, the Chamber acknowledged that
although the Claimant had denied receiving the two first cash payments of EUR
1,000 each on 30 June 2008, the payment receipts provided by the Respondent,
and contained in Annexe 1 and 2 of its submission, appeared to bear the signature
of the Claimant on them. In the same way, the Annexe 9 and 19, respectively,
pertaining to the cash payment of EUR 5,110 apparently made on 25 August 2008
and the cash payment of EUR 318 apparently made on 6 October 2008, had also
been duly signed by the Claimant.
14.
In view of the above, and since the Claimant had at no point put into question the
authenticity of his own signature on the relevant payments receipts, the members
of the Chamber concluded that the Claimant had indeed received all four cash
payments previously mentioned. Consequently, and taking into account that the
Claimant had not denied receiving the other amounts of EUR 4,683 (documented
in Annexe 8), EUR 2,803 (documented in Annexes 13 and 14), EUR 7,404
(documented in Annexe 17) and EUR 2,616 (documented in Annexe 25), which
corresponded to the amounts mentioned on the bank statement the Claimant
submitted in his original claim, it could thus be established that the Claimant had
in fact received, in the form of four cash payments and four wire bank payments
from the Respondent the total amount of EUR 24,934 until 11 December 2008.
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15.
Subsequently, the Chamber observed that the Respondent had provided detailed
documentary evidence apparently demonstrating that an additional amount of
EUR 7,540 had been deducted and retained by the Respondent from the
Claimant’s salary between 2 July 2008 and 12 January 2009 to cover a number of
expenses that had allegedly been caused by the latter. In this respect, and after a
careful analysis of the documentation pertaining to these deductions, the
Chamber firstly noted that, based on the Annexes 4, 7, 12, 16, 20, 26 as well as 28
and, in particular, the phone costs lists mentioning the name of each player, it had
enough evidence to conclude that the costs related to phone calls had indeed
been caused by the Claimant. Secondly, and based on art. 3.1 of the employment
contract which stipulates, inter alia, that “The club will provide 500 USD for
accommodation and the rest of the amount will be covered by the sportsman”,
the Chamber was also satisfied that the documentary evidence comprising of
Annexes 5, 18 and 23 demonstrated that the additional apartment rent costs could
be attributed to the Claimant. Thirdly, the members of the Chamber noted that
the costs related to two flight tickets (documented in Annexes 10 and 11) could be
attributed to the Claimant’s girlfriend since her name was mentioned on the
relevant invoices. Fourthly, the Chamber noted that the costs of a flight ticket paid
to the Claimant and documented in Annexe 3 did not concern the B - S route and
therefore had to be considered as an additional cost generated by the Claimant,
falling outside of the Respondent’s obligations towards the Claimant under the
employment contract. Finally, the Dispute Resolution Chamber found no reason to
believe that the amounts related to the other documented costs pertaining to
meals taken at the ‘Hotel’, the additional apartment costs (for electricity, water
etc..), the two fines according to report 1813 and 1814 as well as the costs related
to the Claimant’s work permit could not be attributed to him either.
16.
The above-mentioned being established, the Chamber then posed itself the
question whether such deductions were admissible under the employment
contract and whether the Respondent had thus had any justification for deducting
such amounts from the Claimant’s salary. In this respect, it noted that, apart from
the provisions on flight tickets and the extra costs related to the accommodation
contained in art. 3.1, the employment contract did not contain any provision
pertaining to such deductions. This said, the Chamber was of the view that such
costs could well be attributed to players as long as it could be ascertained who had
caused them and if they were well documented.
17.
Furthermore, the members of the Chamber endorsed the argument of the
Respondent according to which it had become the creditor of the Claimant and
agreed that coming to another conclusion under the present circumstances would
not be appropriate since this would mean that any expenses caused by a player,
and not provided for by the relevant contract, would automatically have to be
paid by the club. On account of the above, and since the relevant costs had been
incurred by the Respondent on behalf of the Claimant, they could be rightly
deducted by the Respondent from the Claimant’s salary.
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18.
Moreover, the members of the Chamber were keen to underline that the Claimant
had not provided any documentary evidence at all neither demonstrating that the
deductions had been unjustified nor putting a doubt on the Respondent’s
allegations. The Claimant had merely maintained and sought to assert that he had
only received the amount of 80,613 and therefore had deemed that he had a just
cause to unilaterally terminate his contractual relation with the Respondent
19.
In continuation, and having come to the conclusion that the above-mentioned
costs had been rightly deducted from the Claimant’s salary, the Chamber added
the amount of EUR 7,540, representing the deductions made, to the amount of
EUR 24,934 (cf. point II./14. above) and acknowledged that the Claimant was
actually awarded by the Respondent the total amount of EUR 32,474 between the
period elapsing from 30 June 2009 until 12 January 2009.
20.
In this context, the Chamber observed that on 14 January 2009, the very day the
Claimant had unilaterally terminated his employment relationship, the amount of
EUR 41,665 was due to the Claimant according to the relevant employment
contract, whereas an amount of EUR 32,474 had either partly been paid directly to
the Claimant or partly deducted from his salary as expenses incurred. This meant
that, at the time the contract was unilaterally terminated by the Claimant, the
Respondent still owed him the amount of EUR 9,191, i.e. representing just over a
monthly salary under the terms of the contract, a figure much lower than what
the Claimant had put forward and sought to argue in his submissions.
21.
After having come to the aforementioned conclusions, The Dispute Resolution
Chamber went on to consider the content and effect of the termination letter sent
by the Claimant on 14 January 2009, by means of which he unilaterally terminated
his contract, since he deemed that the Respondent had (quote) “constantly and
permanently failed to comply with its contractual obligations towards the player
A, in particular, to pay to him all sorts of remuneration for long periods, such as
salaries and match bonuses without even providing him with a justification for
such delays”. The Chamber further noted that the Claimant had also asked the
Respondent to immediately release him from his contract so that he could join
another club of his choice and had given the Respondent three days to pay him his
alleged outstanding salaries for September 2008, October 2008, November 2008
and December 2008.
22.
In this connection, the Chamber was unconvinced that the Claimant had been able
to prove that the Respondent had “constantly and permanently failed to comply
with its contractual obligations towards the player”, not only for the abovementioned reasons but also because the Claimant had not, except for the
termination letter itself, submitted any documentary evidence demonstrating that
he had, before terminating his contract, contacted the Respondent in order to
bring to its attention the alleged delays of payments. In the Chamber’s view, the
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Claimant should have requested the Respondent to respect the agreed timing of
payments before he unilaterally terminated the contract on 14 January 2009.
Moreover, the members of the Chamber underlined that according to art. 3 of the
contract, the granting (or not granting) of bonuses was at the entire discretion of
the Respondent and consequently, it had to take the view that the Claimant’s
request for bonuses was unjustified since, again, he had not been able to provide
any evidence proving his contrary allegations.
23.
In addition to the above, and most importantly, the Dispute Resolution Chamber
acknowledged that three days after having received the termination letter, i.e. on
16 January 2009, the Respondent had, via bank transfer, paid another additional
amount of EUR 9,191 and, again, on 23 January 2009, had paid another amount of
EUR 8,333 to the bank account of the Claimant. Such payments, the Chamber
remarked, were never contested by the Claimant. Consequently, and taking into
account that the Claimant’s salary of December 2008 was due by no later than 15
January 2009, the Respondent had, by 23 January 2009, fully complied with its
contractual obligations towards the Claimant, having paid to him the total
amount of EUR 49,998 (i.e. the Claimant’s first six salaries under the contract), an
amount representing EUR 42,458 in the form of monetary payments and EUR
7,540 in the forms of deductions for expenses incurred by the Respondent on
behalf of the Claimant.
24.
As for the allegation raised by the Claimant, according to which the payments
made by the Respondent on 16 and 23 January 2009 were made in order to
minimise its alleged breach, the Chamber could not agree with such reasoning
since it was of the firm opinion that such payments had precisely been made by
the Respondent in order to comply with its side of the agreement, entirely
fulfilling by 23 January 2009 its obligations under the relevant employment
contract and demonstrating its willingness to keep the Claimant in its club.
25.
In view of all of the above, the Chamber was convinced that the Claimant had had
no reason to terminate his contract with the Respondent. In fact, by requesting his
alleged outstanding salaries and declaring that he considered himself to be no
longer bound by the contract he had concluded with the Respondent, he had
himself terminated his contract without just cause.
26.
In this respect, the Chamber was keen to emphasise that the sport of football is
subject to cyclical situations in which clubs are often led to make payments slightly
outside of the schedules contractually agreed. This is common knowledge to all
the actors of the football scene and has to be taken into consideration by anyone
intending to lodge a claim.
27.
Having established that the Claimant was in breach of contract without just cause,
the Chamber turned its attention to the financial consequences of such a breach
and further took into account the financial request submitted by the Respondent
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against the Claimant in its counter-claim. In this respect, it noted that the
Respondent had deemed that the amount of EUR 500,000, representing the total
expenses incurred by it for the transfer of the Claimant from his former club to the
Respondent, should be taken into consideration when calculating the correct
amount of compensation. In this connection, the Chamber noted that the
Respondent had provided documentary evidence, in particular, a copy of the
relevant transfer agreement amounting to EUR 450,000 as well as a copy of the
commission agreement for EUR 50,000 paid to a players’ agent for the services
provided in the said transfer.
28.
In continuation, the members of the Chamber referred to art. 17 of the
Regulations and recalled that the said provision contains a non-exhaustive
enumeration of criteria which may be taken into account at the entire discretion
of the relevant decision-making body when calculating the amount of
compensation due. Furthermore, the Chamber recalled that each request for
compensation has to be assessed on a case-by-case basis, taking into account the
circumstances of each particular case as well as the specificity of sport.
29.
With those considerations in mind, and as a preliminary remark, the Chamber
noted that the Claimant had rendered his services to the Respondent from 24 June
2008 until the end of 2008, meaning that the Respondent had amortised 1/6 of his
total investment of EUR 500,000. Consequently, the non-amortised share
represented EUR 416,667 (i.e. EUR 500,000 minus EUR 83,333). In this regard, the
Chamber was keen to underline that a party’s non-amortised investment also falls
within the ambit of art. 17 of the Regulations and its non-exhaustive enumeration
of criteria, such an element representing an indication of the lost suffered by the
injured party. In the present matter, and since the damage suffered by the injured
party was easily calculable, the Chamber decided not to take any other elements
into consideration in order to put a figure on the amount of compensation due.
30.
Finally, and notwithstanding the above, the Dispute Resolution Chamber
considered whether the responsibility of the Claimant could be mitigated by any
attenuating circumstances. In this respect, the Chamber took into account that
although the Respondent had complied with its overall contractual relationship, in
monetary and non-monetary terms, around the time of the unilateral termination
by the Claimant, it had nevertheless delayed, at times, some of the payments due
under the contract for a short period of time. Thus, the Chamber concluded that
the overall compensation to be paid by the Claimant should accordingly be
reduced and could not be awarded in full. Consequently, the members of the
Chamber agreed that the amount of compensation to be paid by the party in
breach of contract should be reduced by EUR 116,667.
31.
Consequently, on account of all of the above-mentioned considerations, the
Chamber unanimously decided that the claim of the Claimant / CounterRespondent is rejected and that the counter-claim of the Respondent / Counter14
Claimant is partially accepted and that, thus, the Claimant has to pay the amount
of EUR 300,000 to the Respondent as compensation for breach of contract without
just cause on the part of the Claimant / Counter-Respondent, A.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, A, is rejected.
2.
The counterclaim of the Respondent / Counter-Claimant, FC D, is partially
accepted.
3.
The Claimant / Counter-Respondent, A, has to pay the amount of EUR 300,000 to
the Respondent / Counter-Claimant, FC D, within 30 days as from the date of
notification of this decision.
4.
Any further claims lodged by the Respondent / Counter-Claimant, FC D, are
rejected.
5.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
6.
The Respondent / Counter-Claimant, FC D, is directed to inform the Claimant /
Counter-Respondent, A, 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.
*****
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Note relating to the motivated decision (legal remedy):
According to article 63 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
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