Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Mick McGuire (England), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by
the player, X, A,
as Claimant/ Counter-Respondent
against
the club, Y, B,
as Respondent/ Counter-Claimant
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 6 August 2005, the player X (hereinafter: the player) and the club Y
(hereinafter: Y or the club) concluded an employment contract, valid from 7
August 2005 until 30 June 2008. The financial terms of the said agreement read,
inter alia, as follows:
Para. 3) lit. A2 “For the season 2006 - 2007
a) The Player shall receive a yearly salary of net 1,400,000 USD (…).
b) The Player shall receive his salary in the following payment
schedule:
USD 200,000
5th July 2006
th
5 August 2006
USD 100,000
th
5 September 2006
USD 100,000
th
5 October 2006
USD 100,000
th
USD 100,000
5 November 2006
th
USD 100,000
5 December 2006
th
5 January 2007
USD 100,000
th
5 February 2007
USD 200,000
th
5 March 2007
USD 100,000
th
5 April 2007
USD 100,000
th
5 May 2007
USD 100,000
th
5 June 2007
USD 100,000”
Para 3) lit. B) “a) The player will receive a match bonus of net 150,000 USD for
each 10 official games he plays;
b) In addition, the player will receive an extra bonus of net 150,000
USD if he plays minimum 35 official games/season;
c) The Club shall pay the Player game bonuses at a rate of 100%,
established by the internal regulations of the club.”
Para 3) lit. C) “OTHER BENEFITS
a) Appropriate housing
b) Appropriate car
c) 3 return Business class flight tickets for the player and his family
B – A for each season”
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Player X / Club Y
Para. 3 lit. D)
“RIGHT TO TERMINATION
If the club does not pay the salary for a period of 2 months, the
Player will have the right to terminate the contract. In order to
exercise this option, the Player shall first make a written
notification to the Club and if the Club does not pay the due
amount within 15 days after receiving this notification, the Player
will be free to immediately terminate the contract and, further on
his condition of a free player, he still will have the right to claim all
the amounts due by the Club in relation to the remaining period
of the contract, as a pre-determined penalty expressly agreed by
the Club. (…)”
2.
Since the club had allegedly not complied with its financial obligations towards
the player relating to the instalments falling due in February, March and April
2007 as well as several bonuses, the player unilaterally terminated the
employment contract in writing on 19 April 2007 and left the club on the same
day.
3.
On 30 April 2007, the player X contacted FIFA and explained that, whereas he had
always respected his contractual obligations, Y had constantly and permanently
failed to comply with its financial obligations towards him on time, without any
justification for the delays. Y had allegedly failed to pay due amounts for long
periods, thereby forcing him to request his legal representative to put the club in
default and preventing the player from fulfilling his own financial obligations. In
this respect, the player provided FIFA with copies of the relevant letters of his then
legal representative, all of which are related to payments due in 2006, along with
the respective transmission reports. Furthermore, the player enclosed copies of his
bank account extracts in support of his statement that his salaries were never paid
on the 5th of each month as contractually established.
4.
The player pleaded that, at the date of his claim, Y had allegedly failed to pay USD
125,250 of the instalment due on 5 February 2007 as well as the two instalments
which, according to the relevant employment agreement, were supposed to be
paid on 5 March 2007 and 5 April 2007, respectively.
5.
On account of the foregoing, the player X requested that he be declared free to
enter into an employment relationship with another club, and that Y be ordered
to pay his outstanding remuneration on the basis of the relevant employment
agreement, the remaining value of the contract and additional compensation for
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Player X / Club Y
the club’s alleged contractual breach. Throughout the proceedings, the player
specified his claim as follows:
- outstanding salaries on 19 April 2007 (instalments
due on 5 February (partly), 5 March and 5 April 2007)
- outstanding appearance bonus pursuant to para. 3 lit. B) a)
- outstanding match bonus based on para. 3 lit. B) c)
- salaries due on 5 May and 5 June 2007
- salary for the season 2007/2008 according to contract
- flight tickets B – A
- financial and moral damages (minimum)
- sporting damages (estimated bonus according to
para. 3 lit. B) a) and b) if he had played with the club
until the end of the 2006/2007 season)
- legal expenses incurred
USD 325,250
USD 150,000
USD
52,500
USD 200,000
USD 1,400,000
USD
31,385.53
USD 500,000
USD
EUR
300,000
40,000
6.
With regard to the aforementioned appearance bonus amounting to USD 150,000,
the player X contended that, having participated in the 60th official match since
the beginning of the contractual relationship on 19 November 2006, para. 3 lit. B)
a) of the employment contract entitled him to receive such bonus on 19 November
2006. In this respect, the player explained that based on the relevant provision, he
had the right to receive a bonus of USD 150,000 per every 10 matches he
participated in since the beginning of the parties’ contractual relationship, and
that consequently the matches of the previous season were carried on to the
subsequent season. In support of his allegations, the player highlighted that para.
3 lit. B) b) provides for an additional bonus in case he participated in 35 matches
per season, whereas there is no reference to seasons in para 3 lit. B) a). The player
emphasised that this bonus was an integrant and very important part of his
financial remuneration. Furthermore, in regard to the matches played, the player
indicated that he had appeared in 46 official matches in the 2005/2006 season and
20 official matches during the 2006/2007 season.
7.
Furthermore, referring to para. 3 lit. B) c) of the employment contract, the player
maintained that the club still owed him match bonuses for victories and draws at
an estimated amount of USD 52,500. The player put forth that there was no
mention with regard to the exact corresponding amounts in the club’s internal
regulations; however, the player deemed that, in view of the average match bonus
received so far, he was entitled to receive USD 2,500 per draw and USD 5,000 per
4
Player X / Club Y
victory. In this respect, the player presented a breakdown of the matches on the
basis of which he claimed the relevant bonus.
8.
Finally, the player X requested that the club be banned from registering any new
players for two registration periods.
9.
On 4 May 2007, the Football Federation of B informed FIFA that on 3 May 2007, it
had, upon request of Y, blocked the amount of USD 410,000 from the credits of its
affiliated club in favour of the player X. The relevant communication was
forwarded to the attention of the player on 8 May 2007.
10.
On 14 May 2007, the club informed FIFA that it rejected the player’s claim as
unfounded. In this regard, Y referred to para. 3 lit. D) of the employment
agreement, dealing with the right to termination of the contract. In this respect,
the club argued that the player had not respected the procedure contained in the
cited provision. In particular, the player had not put the club in default of the
instalments due in February, March and April 2007 prior to the termination of the
contract. As a result, the player’s letter of termination dated 19 April 2007 was
irregular and without effect, as a consequence of which the player had been
absent from the club without authorization since that date.
11.
In response to the respective allegations of the player, Y held that it had indeed
complied with its contractual financial obligations by paying the amount of USD
410,000 to an account of the Football Federation of B which was at the entire
disposal of the player. This amount included the remainder of the instalment
falling due on 5 February 2007, the instalments of 5 March and 5 April 2007 and
the bonus for the player’s 20th official match. The relevant deposit had been made
on 3 May 2007, thus within 15 days upon receipt of the termination letter, which,
according to the club, could at the most be considered as a payment reminder.
12.
Furthermore, the club held that the player was not entitled to claim a bonus for
his 60th official match played, since the relevant bonus had to be calculated per
season, due to which the matches played in 2005/2006 could not be taken into
account. Since the player had played in 21 official matches in the season
2006/2007, he had already received USD 150,000 for the first ten matches, and the
amount of USD 150,000 for the 20th match played was included in the amount
deposited with the Football Federation of B.
5
Player X / Club Y
13.
With regard to the difference between the outstanding remuneration claimed by
the player and the amount of USD 410,000 which Y had deposited with the
Football Federation of B, the club explained that this was due to the expenses
amounting to USD 64,138 which the player allegedly still owed to the club. The
said amount was allegedly composed of phone bills, costs for a VIP-box in the
stadium, travel expenses and similar items exceeding the club’s contractual
obligations. In this respect, payment receipts were presented by Y.
14.
On account of the foregoing, Y requested that it be established that it had fully
complied with its contractual obligations towards the player and that the player
had no just cause to abandon the club and leave the country on 19 April 2007. As a
consequence, the club demanded that the player was to return to the club
immediately.
15.
In this connection, Y lodged a counterclaim against the player for breach of
contract in case the latter would not resume duty with the club. The club pleaded
that it had not only lost one of its most important players during the crucial part
of the championship 2006/2007, but also the opportunity to negotiate his transfer
to another club. Y estimated that the sporting and financial damage caused by the
player’s unexpected departure amounted to EUR 2,000,000. Furthermore, since the
club claimed having paid EUR 2,950,000, including the fee of EUR 350,000 for the
players’ agent involved, for the player’s transfer from the club Q, Y requested
compensation for its non-amortized investment in the amount of EUR 1,180,000.
Moreover, Y presented documentary evidence in support of its statements
regarding the alleged involvement of a players’ agent in the transfer in question.
16.
Consequently, Y claimed EUR 3,180,000 as compensation for breach of contract,
the reimbursement of its legal expenses and the imposition of sporting sanctions
on the player since he had breached his contract during the protected period.
Furthermore, the club announced that it reserved its right to claim against a
possible new club of the player for inducement to breach of contract.
17.
By correspondence dated 23 May 2007, the player insisted that the club’s general,
permanent and unacceptable contractual non-compliance had forced him to
lawfully unilaterally terminate their employment contract. Moreover, and with
regard to para. 3 lit. D) of the employment contract in quesiton, the player held
that he had, in the recent past, provided Y with several notices in writing, thereby
placing it into contractual default. Furthermore, to accept the validity of such a
clause would mean legitimizing contractual non-compliance on the part of the
6
Player X / Club Y
employer, and forcing employees to have to regularly notify their employer in
writing in order to receive their remuneration; this led the player X to conclude
that the content of para. 3 lit D) of the contract was null and void and should be
disregarded.
18.
With reference to the deposit made by Y with the Football Federation of B on 3
May 2007, the player X was of the opinion that this fact did not serve as a
mitigating circumstance in the club’s favour, since the employment contract had
already been terminated on 19 April 2007.
19.
Furthermore, the player reiterated that he was entitled to receive the bonus of
USD 150,000 per every ten official matches in which he participated,
independently of the sporting season, i.e. since the beginning of the parties’
contractual relationship. In this regard the player argued that the only reason why
Y defended the contrary was because the relevant payment would then only have
become due in April 2007 instead of on 19 November 2006.
20.
The player confirmed that he had not yet signed an employment contract with
another club.
21.
With regard to Y’s counterclaim, the player stated that the club was the party that
had repeatedly breached the relevant employment contract, which is why the
player had legitimately put an end to the contractual relationship. Finally, the
player contested that the players’ agent referred to by Y had been involved in his
transfer to the club.
22.
In its correspondence dated 8 June 2007, Y explained that, when its own debtors
had been in delay with their payments, the club had been faced with a lack of
liquidity leading to some payments behind schedule. However, the player had
always been informed accordingly. And, in any case, by depositing the outstanding
amount of USD 410,000 with the Football Federation of B, the club had settled all
its debts towards the player.
23.
The club reiterated that the bonus for every 10th official match based on para. 3 lit.
B) a) had to be calculated per season. Y submitted a list of matches in which the
player had participated as of July 2006 and, furthermore, pointed out that the
contract did not stipulate any due date for the payment of the bonus for every 10th
official match.
7
Player X / Club Y
24.
Y also emphasized that the internal regulations of the club did not provide for any
additional match bonus payments. The supplementary bonuses paid to the player
for important victories had been voluntary and a sign of the good will of the club.
25.
With regard to the requests for payment sent to Y by the player’s legal
representative, the club pointed out that in none of the letters the player had
asked for the instalments falling due in February, March and April 2007.
Furthermore, the letters showed that the club had never been behind schedule
with payments in 2006 to such an extent so as to harm the player, considering
especially that in the end Y always fulfilled its obligations.
26.
Upon invitation of FIFA for the player to present his final position regarding the
counterclaim of Y, on 21 June 2007 the player submitted further comments mostly
pertaining to the club’s rejoinder. The player explained that the temporary lack of
liquidity caused by the club’s debtors’ failure to pay due amounts could not be
held against him. Furthermore, the permanent non-compliance of its contractual
obligations had in particular led to a breach of the player’s confidence towards his
employer, which in international labour law was recognised as a just cause to
unilaterally terminate an employment contract. The player pointed out that, on 19
April 2007, he was owed the considerable amount of USD 527,750. Furthermore,
with regard to the statement of Y according to which the match bonuses were due
to a voluntary good gesture of the club, the player referred to para. 3 lit. B) c) of
the contract, clearly stipulating that he was entitled to receive such bonuses.
Finally, the player X stressed that the club had failed to provide FIFA with any
documentary evidence proving that it had always paid his remuneration on time.
27.
Since the player X had not only provided FIFA with statements regarding the club’s
counterclaim, but also with further comments in support of his complaint, Y was
granted an opportunity to present its final response thereto. The club emphasized
that at the moment of the player’s departure from B, undisputedly all of his
salaries had been paid, except for the last two and a half instalments which were
subsequently deposited with the Football Federation of B. Y furthermore
reiterated that the player had not been entitled to unilaterally terminate the
employment contract on 19 April 2007 without prior warning and to leave the
club the same day. In this regard, the club expressed its assumption that the player
had been so eager to leave the club that he did not have the intention of further
complying with the employment contract entered into by the parties.
8
Player X / Club Y
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber had to analyse whether it was
competent to deal with the matter at hand. In this respect, it referred to art. 18
paras. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 30 April 2007, as a consequence the Dispute Resolution
Chamber concluded that the revised Rules Governing Procedures (edition 2005) on
matters pending before the decision making bodies of FIFA are applicable on the
matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 para. 1
of the above-mentioned Rules states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 para. 1 in connection with art. 22 b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated disputes between a club and a player that have an international
dimension.
3.
Therefore, the Dispute Resolution Chamber concluded that it is the competent
body to decide on the present litigation involving a player from A and a club from
B regarding a dispute in connection with the employment contract concluded
between the aforementioned parties on 6 August 2005.
4.
Subsequently, the Dispute Resolution Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand, to
art. 26 paras. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the circumstances that the relevant
contract had been concluded on 6 August 2005 and that the player’s claim was
lodged with FIFA on 30 April 2007. In view of the foregoing, the Dispute
Resolution Chamber concluded that the current FIFA Regulations for the Status
and Transfer of Players (edition 2005, hereinafter; the Regulations) are applicable
in the case at hand as to the substance.
5.
Entering into the substance of the matter, the Dispute Resolution Chamber
commenced its deliberations by establishing that first and foremost it had to focus
on the question whether or not the employment contract concluded between the
9
Player X / Club Y
player and the club on 6 August 2005, valid from 7 August 2005 until 30 June
2008, had been terminated by the player for just cause and, as the case may be, on
the possible consequences resulting therefrom.
6.
Proceeding to a thorough analysis of the circumstances given in the matter at
hand, the Chamber firstly acknowledged that the player X considered the
permanent failure of the club Y to pay his remuneration on the dates stipulated in
his contract to constitute a breach of contract on the part of the club, which had
entailed a loss of confidence of the player in his employer. The members of the
Chamber furthermore took note that the player deemed that the aforementioned
circumstance as well as the fact that finally, on 19 April 2007, the instalments
falling due in February (partly), March and April 2007 as well as several bonuses
still remained outstanding, constituted a just cause to terminate the employment
contract between the parties. Accordingly, the player had served a termination
notice to the club on 19 April 2007, as evidenced by the corresponding fax
transmission report.
7.
In this respect, the Dispute Resolution Chamber held that, independently of its
final decision in the present case with regard to the question of breach of
contract, the player was entitled to receive the contractual remuneration duly
earned until his departure from the club, the calculation of which the panel would
attend to at a later stage of its deliberations.
8.
On the other hand, the Dispute Resolution Chamber took note of the position of
the club, according to which it had sometimes admittedly been in delay, of
allegedly one month approximately, with the payment of the player’s
remuneration. Moreover, the members of the Chamber paid due consideration to
the argumentation of Y, according to which the player had not complied with the
procedure stipulated in the clause 3 lit. D) of the employment agreement
concluded between the parties, dealing with the right of the player to terminate
the said contract due to late payment.
9.
With reference to the aforementioned reasoning of the club, the members of the
Chamber were of the unanimous opinion that, in the present case, the clause 3 lit.
D) of the employment contract was a crucial element with regard to the question
of the legitimacy of the unilateral termination of the contract on the part of the
player and, consequently, deserved the particular attention of the panel.
10
Player X / Club Y
10.
Introductorily, the Dispute Resolution Chamber deemed appropriate to point out
that, in the past, it had on numerous occasions upheld the unilateral termination
of an employment contract by players who had, depending on the particular
circumstances of the relevant case at stake, not received their salaries for two or
more months.
11.
In this respect, the members of the panel took due note of the apparently quite
considerable delays in payment on the part of the club, which – at such frequency
of occurrence – had to be condemned and were by all means to be avoided. The
Dispute Resolution Chamber also acknowledged that, fundamentally, the belated
payments had not been contested by the club.
12.
However, the Chamber recalled that in the case at hand, the parties had explicitly
agreed upon a clause in their employment contract which stipulated in detail the
prerequisites for the termination of the contract in case of delayed salary
payments and the procedure which had to be respected in such an event.
Consequently, since the validity of the clause had been contested by the player,
the members of the Chamber agreed that they had to proceed by establishing
whether the clause indeed was applicable under the given circumstances and, if so,
whether it had been respected in the present case.
13.
The Dispute Resolution Chamber firstly held that parties to an employment
agreement were by no means impeded from including provisions specifically
governing the termination of the relevant contract and determining certain
preconditions in this respect. The members of the Chamber pointed out that such
clauses were regularly inserted into employment contracts and applied in practice.
However, the Dispute Resolution Chamber was eager to emphasize that, in the
past, the applicability of such clauses had also been refused due to conditions
which complicated the termination of an employment contract to an unacceptable
and excessive extent.
14.
With regard to the specific matter under consideration, the members of the
Dispute Resolution Chamber ascertained that the relevant clause established a
procedure according to which the player would, after the failure of the club to pay
his salary during a period of two months, have to serve a written notice to the
club. Subsequently, should the club fail to pay the outstanding amount within 15
days upon receipt of the notification, the player would be free to immediately
terminate the contract.
11
Player X / Club Y
15.
Upon analysis of the relevant clause, the Dispute Resolution Chamber came to the
conclusion that the clause was clear and stipulated precise conditions for the
termination of the agreement which could by no means be considered
unacceptable or excessive, neither as to the form nor to the time. Furthermore,
with regard to the precondition of a written warning prior to the termination of
the employment contract, the members of the Chamber pointed out that, even
without being stipulated in an employment contract, this was a procedure
regularly confirmed and applied by the Dispute Resolution Chamber and the Court
of Arbitration for Sport (hereinafter: CAS).
16.
The foregoing considerations led the panel to conclude that it could not agree
with the assessment of the player according to which the clause was be null and
void, and that the relevant clause was indeed applicable to the matter at hand.
17.
In this context, the members of the Dispute Resolution Chamber were also eager
to stress that the player himself had in fact taken actions pursuant to the clause 3
lit. D) of the relevant contract. The Chamber namely referred to the
communications sent in 2006 by the then legal representative of the player to the
club reminding it of its financial obligations. The panel particularly drew its
attention to the communication dated 10 November 2006 entitled “Contractual
default – termination”, by means of which the then legal representative of the
player called for the payment of two allegedly outstanding salaries as well as
bonus provided for under para. 3 lit. B) a) of the employment agreement. The
Dispute Resolution Chamber deemed that, by proceeding in this manner, the
player had accepted the validity of the disputed clause; this all the more so in view
of the fact that in the said letter dated 10 November 2006, the then legal
representative of the player explicitly stated that, in case of non-payment within
48 hours, the player “will exercise his rights provided under Clause 3, D) of the
Contract and call for its immediate termination”.
18.
Referring to the present matter, the Chamber ascertained that, whereas the player
appears to have repeatedly asked for the payment of his remuneration falling due
in 2006 in accordance with clause 3 lit. D) of the employment agreement, he had
apparently not proceeded accordingly for the instalments payable in February,
March and April 2007, on the basis of which he had finally served a termination
notice to the club.
19.
In this regard, the Dispute Resolution Chamber held that, even in absence of a
clause prescribing a written warning prior to the termination of an employment
12
Player X / Club Y
contract for arrears of salary, according to the jurisprudence of the CAS it was
questionable whether delayed payments of salary justified an extraordinary
contract termination without prior warning. The members of the Chamber
deemed of importance to point out that one decisive criteria determined by the
CAS in this respect was whether the debtor simply refused to make a payment or
whether there were circumstances which could easily be resolved through a
warning notice.
20.
In this context, the panel held that the player could not have acted on the
assumption that it would have been futile to ask for the payment of his
outstanding remuneration before proceeding to the termination of the contract in
April 2007, since, in the past, the club had never refused to pay his remuneration
and had fulfilled its financial obligations towards the player, albeit with regular
delays. In particular, the Chamber recalled that during the year 2006 the player
had regularly received his overdue remuneration after having put the club in
default in accordance with clause 3 lit. D) of the contract.
21.
The panel deemed that the sudden termination notice and departure of the player
from the club and the country without prior notice rather allowed the
presumption that the player was not anymore disposed to continue to render his
services to the club; even more so as it appeared from the letter dated 10
November 2006 of the then legal representative of the player that the latter
already then intended to find a new club in A.
22.
In view of the above considerations, the members of the Dispute Resolution
Chamber were of the unanimous opinion that they had no alternative but to
conclude that the player had failed to respect the procedure held in the clause 3
lit. D) of the employment contract, that he therefore had no just cause to
terminate the contract with Y and that, in view of his absence from the club since
19 April 2007 without valid excuse, he was in breach of the employment
agreement concluded between the parties to the present case.
23.
For the sake of good order, the members of the Chamber deemed it appropriate
to add that even if the termination notice dated 19 April 2007 had been
considered a written warning notice in the sense of clause 3 lit. D) of the
employment contract, the deposit of the amount of USD 410,000 with the
Football Federation of B by Y on 3 May 2007 would have constituted payment of
outstanding amounts within the established timeframe of 15 days.
13
Player X / Club Y
24.
In view of the above, the members of the Chamber proceeded to deliberate on the
consequences of the player’s breach of contract. With regard to the request of the
club for the player to immediately resume duty with the club, the Dispute
Resolution Chamber acknowledged that the player had ascertained “a serious and
irreparable breach of confidence, due to the Respondent’s unlawful and
reproachable contractual non-compliances” and had left B for his home country A
on 19 April 2007, thereby expressing his firm unwillingness to continue to render
his services for Y.
25.
Consequently, the Dispute Resolution Chamber held that Y’s request to order the
player to immediately return to the club could not be reasonably granted due to
the deep disrupture of the contractual relationship between the parties.
Therefore, the contractual relationship between the parties involved must be
considered as terminated and the player will be liable to pay compensation or
even serve a sporting sanction. In this respect, the panel referred to the
counterclaim lodged by Y in case the player did not resume duty and established
that, in view of the player’s breach of the relevant employment contract without
just cause and by virtue of art. 17 para. 1 of the Regulations, the club’s
counterclaim for compensation for breach of contract was well-founded.
26.
With regard to the amount of compensation due to the club, the panel referred to
the above-mentioned article stipulating a non-exhaustive enumeration of
objective criteria which had to be taken into consideration. In particular, the
members of the Chamber took into account the considerable remuneration
awarded to the player while rendering his services to Y, the amount of money
invested by the club on occasion of the transfer of the player amortised over the
term of the contract (i.e. EUR 2,950,000 : 35 x 14 = EUR 1,180,000), that the
employment contract in question still had approximately one more season to run
and that the breach of contract occurred within the protected period. Accordingly,
the members of the Chamber concluded that the amount of EUR 3,180,000
claimed by the club was reasonable and justified by the circumstances surrounding
the present case. As the player did not appear to have found a new club until the
date of the present decision, the members of the Chamber held that the player
alone was liable to pay the said amount to Y.
27.
Furthermore, the panel decided that, as the player’s breach of contract without
just cause had occurred during the protected period, the player was to serve a ban
of four months on his eligibility to play in official matches (cf. art. 17 para. 3 of the
Regulations).
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Player X / Club Y
28.
In continuation, and as previously established (cf. point II.7. above), the members
of the Chamber had to address the issue of the remuneration due to the player for
his services rendered until 19 April 2007. Upon analysis of the relevant submissions
of the parties, the panel established that the player was to receive the following
salary payments:
Salary due on 5 February 2007 (partly)
Salary due on 5 March 2007
Salary due on 5 April 2007
Salary due on 5 May 2007 (pro rata until 19 April 2007)
USD 125,250
USD 100,000
USD 100,000
USD 50,000
Total:
USD 375,250
29.
Furthermore, the members of the Chamber held that the player was to receive a
bonus payment of USD 150,000 in accordance with para. 3 lit. B) a) of the
employment contract. With regard to the controversy between the player and the
club whether this payment was due for the player’s 20th match of the season
2006/2007 or 60th match since the beginning of the relevant contractual
relationship, the panel deemed that this question could remain unanswered for
the purpose of the present decision, as the differing interpretations of the
relevant clause had no effect on the amount due but only on the date of the due
payment, if at all. The Dispute Resolution Chamber furthermore considered that
no due date for the bonus payments as per para. 3 lit. B) a) of the contract
appeared to have been stipulated in the employment agreement and that, in any
case, the timely payment of this bonus was of no relevance for the application of
para. 3 lit. D) of the contract which only referred to the payment of salaries.
30.
With regard to the bonus claimed by the player X under the terms of para. 3 lit. B)
c) of the employment contract, the members of the Chamber noted that the
respective entitlement of the player had been contested by the club. In this
respect, the Dispute Resolution Chamber acknowledged that the internal
regulations of the club, to which the relevant provision referred, undisputedly
made no mention of the amount of bonus to be paid. Furthermore, the panel took
note that the player, carrying the burden of proof for the relevant claim, had not
been able to provide FIFA with documentary evidence in order to corroborate that
he had received the claimed amounts per victory/draw in the past. The amounts
indicated in his claim were admittedly mere estimations on his part. Consequently,
the panel deemed that, due to the lack of evidence, it had no alternative but to
reject the respective claim of the player.
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Player X / Club Y
31.
Accordingly, the Dispute Resolution Chamber determined that the player was due
to receive outstanding remuneration totalling USD 525,250 (outstanding salaries
plus one bonus recognised by the club pursuant to para. 3 lit. B) a) of the
contract). However, the panel established that the said amount had to be reduced
by the sum of USD 64,138 comprising the player’s expenses which had been borne
by Y and exceeded his contractual entitlements, the payment of which had been
evidenced by payment receipts and had not been explicitly contested by the
player. Consequently, the Chamber concluded that the player was still entitled to
the amount of USD 461,112.
32.
The panel then proceeded to conclude its deliberations in the present case by
addressing the payment modalities for the respective entitlements of the parties
to the dispute. In this regard, the Dispute Resolution Chamber highlighted that,
firstly, the player was to pay the amount of EUR 3,180,000 to the club as
compensation for contractual breach, that secondly, the amount of USD 410,000
had been deposited by Y with the Football Federation of B in favour of the player
and that finally, the player was still to receive outstanding remuneration in the
amount of USD 461,112. Regarding the settlement of these amounts, the Dispute
Resolution Chamber decided that the Football Federation of B was to be
instructed by FIFA to release the relevant deposit of USD 410,000 in favour of its
affiliated club. Moreover, Y was to be instructed to pay the amount of USD
461,112 to the player. And finally, the player X was to be instructed to pay the
compensation for breach of contract in the amount of EUR 3,180,000 to the club.
33.
Finally, in spite of being the successful party to the present dispute, the club’s
request for the award of its legal expenses was rejected by the Dispute Resolution
Chamber in accordance with art. 15 paras. 2 and 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
as well as its longstanding jurisprudence.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/ Counter-Respondent, Mr X, is partially accepted.
2.
The counter-claim submitted by the Respondent/ Counter-Claimant, the club Y, is
accepted.
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Player X / Club Y
3.
The Claimant/ Counter-Respondent is ordered to pay EUR 3,180,000 to the
Respondent/ Counter-Claimant within 30 days as of notification of the present
decision.
4.
The Respondent/ Counter-Claimant is ordered to pay USD 461,112 to the Claimant/
Counter-Respondent within 30 days as of notification of the present decision.
5.
Any further claims of the Claimant/ Counter-Respondent and the Respondent/
Counter-Claimant are rejected.
6.
A restriction of four months on his eligibility to play in official matches is imposed
on the Claimant/ Counter-Respondent. The sanction shall take effect as from the
first day of the registration of the player with a new club.
7.
In the event that the Claimant/ Counter-Respondent respectively the Respondent/
Counter-Claimant does not comply with the present decision, the matter shall be
submitted to FIFA’s Disciplinary Committee, so that the necessary disciplinary
sanctions may be imposed.
8.
The Respondent/ Counter-Claimant is directed to inform the Claimant/CounterRespondent and vice versa directly and immediately of the account number to
which the remittance is to be made, and to notify the Dispute Resolution Chamber
of any receipt of payment.
9.
According to art. 61 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:
Château de Béthusy
Avenue de Beaumont 2
1012 Lausanne
Switzerland
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Player X / Club Y
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
[email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Encl.
CAS directives
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Player X / Club Y