Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 5 December 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Alex andra Góm ez Bruinew oud (Uruguay & Netherlands ), member
S tijn Boey kens (Belgium ), member
S tefano La Porta (Italy ), member
Abu Nay eem S hohag (Banglades h), member
on the claim presented by the club,
Henan FC, China PR,
represented by Mr Gauthier Bouchat & Mr Sven Demeulemeester
as Claimant / Counter-Respondent
against the player,
Jav ier Patino Lachica, Philippines,
represented by Mr Marco Consumo
as Respondent / Counter-Claimant
and the club,
Burinam United, Thailand,
represented by Mr Menno Teunissen & Mr Thomas Spee
as intervening party
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On 20 January 2015, the Thai club, Buriram FC (hereinafter: the intervening party) and
the Chinese club, Henan FC (hereinafter: the Claimant / Counter-Respondent) signed a
transfer agreement (hereinafter: the transfer agreement) for the definitive transfer of
the Filipino player, Javier Patino Lachica (hereinafter: the Respondent / CounterClaimant) from the former to the latter.
2.
In accordance with the transfer agreement, the Claimant / Counter-Respondent was to
pay to the intervening party the total amount of USD 1,200,000 by 30 January 2015.
3.
On an unknown date, the Respondent / Counter-Claimant and the Claimant / CounterRespondent signed an employment contract (hereinafter: the contract) valid as from 1
January 2017 until 31 December 2018.
4.
In accordance with the contract, the Respondent / Counter-Claimant was entitled to
the following:
a. For the season 2017, USD 2,000,000 annually paid in 12 monthly installments
as from January 2017;
b. For the season 2018, USD 2,000,000 annually paid in 12 monthly installments
as from January 2018;
c. “If the player participate in training and matches in full work attendance
arranged by club, the basic monthly salaries USD 166,666.7 for the last month
will be paid on 20‘" of this month.”;
d. A sign on fee of USD 500,000 payable on 10 March 2017.
5.
Art. 2 of the contract provided that the Claimant / Counter-Respondent could
terminate the contract “in accordance to the [Respondent / Counter-Claimant]’s
competence, performance, conditions and/or the club’s technical/tactical arrangements
and/or other needs.” Said article also provided that if such termination was to occur
between 1 January 2017 until 31 December 2017, the Respondent / Counter-Claimant
would be entitled to USD 2,000,000 and if the termination was to occur between 1
January 2018 until 31 December 2018, he would be entitled to USD 1,000,000. “in any
case, the compensation the player receives shall not exceed 50% of the player’s
remaining contract value”.
6.
In accordance with art. 8 of the contract, the Claimant / Counter-Respondent had the
obligation to :
a. Para. 1 (5) “Keep fit and good athletic state and exert physical strength and
skill to maximum degree”;
b. Para. 1 (8) “Take the medical examination, physical monitoring, vaccination,
precaution, and injury treatment arranged by the [Claimant / CounterRespondent], and report the injury and recovery progress in time to the
[Claimant / Counter-Respondent]”;
c. Para. 2 (17) “If the [Respondent / Counter-Claimant] does not receive necessary
treatment as requested, and also use sickness or injury as excuse and refuse to
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participate in training, matches and/ or other activities, the [Claimant /
Counter-Respondent] can impose punishment on the [Respondent / CounterClaimant] according to this contract or rules and disciplines of the team. For
each occurrence, the [Claimant / Counter-Respondent] has the right to impose
a fine (or penalty) of USD 5,400. If it affects the [Respondent / CounterClaimant]’s normal training and matches, the [Claimant / CounterRespondent] will not pay the salaries during the period when the [Respondent
/ Counter-Claimant] does not participate in training and matches. If the
[Respondent / Counter-Claimant] does not participating in training and/or
matches arranged by the club up to five days, it shall be deemed as
fundamental breach of contract by the [Respondent / Counter-Claimant]. In
addition to the imposition of punishment according to this contract and the
rules and disciplines of the team, the [Claimant / Counter-Respondent] is
entitled to terminate this Contract based on justified reason»;
d. Para. 3 “If the [Respondent / Counter-Claimant] constitutes fundamental
breach of the Contract or violates any agreement up to three times or more,
the [Claimant / Counter-Respondent] has right to terminate contract based on
this justified reason, and the [Respondent / Counter-Claimant] shall pay
indemnification to the [Claimant / Counter-Respondent], which is the total
amount of transfer fee, agent fee, legal fee paid by the [Claimant / CounterRespondent] due to the transfer of the [Respondent / Counter-Claimant] as
well as the salaries, sign-on fees and bonuses that the [Claimant / CounterRespondent] pays to the [Respondent / Counter-Claimant] in accordance with
this Contract (whether actually paid or not)”.
7.
According to art. 10 para. 1 of the contract: “During the term of this contract, the
[Claimant / Counter-Respondent] can transfer or loan the [Respondent / CounterClaimant] to any third party, if such transfer, loan has resulted in the [Respondent /
Counter-Claimant] receiving monthly basic salary not lower than 70% as stated in
Article 5 Par. 2 of this contract. The [Respondent / Counter-Claimant] shall
unconditionally agree to the transfer of loan. Otherwise the [Claimant / CounterRespondent] has right to demand premature termination of contract based on this as
justified reason and demand the [Respondent / Counter-Claimant] to pay penalty
according to Article 8(3) of this contract.”
8.
Art. 11 of the contract provided the following:
a. Para. 1 “In case that the [Claimant / Counter-Respondent] breaches the
contract and cancels the Contract or concludes an invalid contract with the
[Respondent / Counter-Claimant] due to the [Claimant / CounterRespondent]’s reason which causes less of the [Respondent / CounterClaimant], and/or if the [Claimant / Counter-Respondent] i) delays any of the
payments in this Contract for more than 3 months; ii) fails to register the
[Respondent / Counter-Claimant] in official competitions, iii) does not allow
the [Respondent */ Counter-Claimant] to train with the other players of the
Senior First Professional Team, iv) and/or the [Respondent / Counter-Claimant]
terminates the present contract with justified cause, in all these cases the
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[Respondent / Counter-Claimant] shall have the right to terminate the contract
and the [Claimant / Counter-Respondent] will have to pay a penalty to the
[Respondent / Counter-Claimant] and the penalty amount is subject to this
Contract.”;
b. Para. 2 “In case that the [Respondent / Counter-Claimant] cancels the Contract
without justified reason, according to relate rules and regulations of FIFA, the
[Respondent / Counter-Claimant] shall compensate the [Claimant / CounterRespondent] for damage incurred to the [Claimant / Counter-Respondent].
The indemnisation is calculated in accordance with Article 8 Par.3 of this
Contract. The club which the player is transferred into shall bear joint and
several liability together with the [Respondent / Counter-Claimant]. The
[Claimant / Counter-Respondent] has right to request for require FIFA and/or
CFA for additional sports punishment due to the player’s breach of the
Contract.”
9.
On 3 February 2018, the Claimant / Counter-Respondent and the intervening party
signed a loan agreement (hereinafter: the loan agreement) for the temporary transfer
of the Respondent / Counter-Claimant from the former to the latter valid as from 4
February 2018 until 30 November 2018. The Respondent / Counter-Claimant did not
sign the loan agreement.
10.
In accordance with the loan agreement, the intervening party would have been
responsible for the salaries of the Respondent / Counter-Claimant.
11.
In this respect, an employment contract (hereinafter: the draft contract) between the
Respondent / Counter-Claimant and the intervening party was drafted, which was not
signed by the Respondent / Counter-Claimant, valid as from 4 February 2018 until 30
November 2018.
12.
According to the draft contract, the Respondent / Counter-Claimant would have been
entitled to a salary of USD 30,000 per month.
13.
On 4 February 2018, the Claimant / Counter-Respondent informed the Respondent /
Counter-Claimant that the loan agreement had been signed, and informing the
Respondent / Counter-Claimant that the intervening party would pay him USD 30,000
per month while the Claimant / Counter-Respondent would complete his salary to
make it reach 70% of the amount he earned with the Claimant / Counter-Respondent
in accordance with art. 10 para.1 of the contract.
14.
On the same day, the Respondent / Counter-Claimant’s representative replied that it
did not agree with the interpretation of the contract by the Claimant / CounterRespondent and that the Respondent / Counter-Claimant had no obligation to agree
to the loan, especially with a lower salary.
15.
On the same day, and following the email of the Respondent / Counter-Claimant, the
Claimant / Counter-Respondent invited the Respondent / Counter-Claimant to sign the
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loan agreement, to which the Respondent / Counter-Claimant refused as he first
needed to be provided with the draft contract between him and the intervening party
to assess it. Upon being provided by the Claimant / Counter-Respondent with the draft
contract between the Respondent / Counter-Claimant and the intervening party, the
Respondent / Counter-Claimant informed the Claimant / Counter-Respondent that it
would not sign the draft contract with intervening party.
16.
On 5 February 2018, the Respondent / Counter-Claimant complained to the Claimant /
Counter-Respondent that it had provided the intervening party with a copy of the
contract, and invited the Claimant / Counter-Respondent to inform the intervening
party that the Respondent / Counter-Claimant was still injured “and not fit to play for
a month”.
17.
On 14 February 2018, the Claimant / Counter-Respondent, via his counsel, unilaterally
terminated the contract arguing that the Respondent / Counter-Claimant had
breached art. 8 para. 1 (5) and (8) as well as art. 8 para. 2 (17) and art. 10 para. 1 of the
contract.
18.
On 15 February 2018, the Respondent / Counter-Claimant replied to the termination
arguing that the Claimant / Counter-Respondent’s representative did not have a valid
power of attorney and on the same day, said representative provided a power of
attorney signed by the Claimant / Counter-Respondent.
19.
The Claimant / Counter-Respondent lodged a claim against the player in front of FIFA
for breach of contract requesting the total amount of USD 5,700,000 plus 5% interest
p.a. as form 14 February 2018 corresponding to:
a. USD 1,200,000 as transfer fee paid by the Claimant / Counter-Respondent to
the intervening party;
b. USD 4,000,000 corresponding to the total value of the salaries due under the
contract of USD 2,000,000 for each year;
c. USD 500,000 as sign on fee;
d. Sporting sanctions to be imposed on the Respondent / Counter-Claimant;
e. Procedural costs at the expense of the Respondent / Counter-Claimant.
20.
The Claimant / Counter-Respondent terminated the contract arguing that the
Respondent / Counter-Claimant had refused to sign the draft contract with the
intervening party, while the Claimant / Counter-Respondent considered that the loan
was not an option to be accepted by the Respondent / Counter-Claimant but an
obligation in accordance with art. 10 of the contract. The Claimant / CounterRespondent further added that the Respondent / Counter-Claimant refused to join the
intervening party “without any valid reason” and that in accordance with art. 10 para.
1 of the contract, the Claimant / Counter-Respondent had just cause to terminate the
contract and that in accordance with art. 8 para. 3 the Respondent / Counter-Claimant
had to pay a penalty to the Claimant / Counter-Respondent.
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21.
The Claimant / Counter-Respondent held that the Respondent / Counter-Claimant was
not injured contrary to the affirmation of the Respondent / Counter-Claimant in his
letter dated 5 February 2018 as the Claimant / Counter-Respondent argued that it
conducted a medical examination on the Respondent / Counter-Claimant which
revealed no injury.
22.
In reply to the claim of the Claimant / Counter-Respondent, the Respondent / CounterClaimant lodged a counterclaim against the Respondent / Counter-Claimant in front of
FIFA requesting the total amount of USD 3,000,000, corresponding to:
a. USD 250,000 as outstanding remuneration for the salaries of January 2018
(USD 166,666.7) and half of February 2018 (USD 83,333.3), as the Respondent
/ Counter-Claimant argued that he was unable to have access to his Chinese
bank account since the Claimant / Counter-Respondent did not provide to the
Respondent / Counter-Claimant an official document stating that all the taxes
on the salaries had already been paid by the Claimant / Counter-Respondent,
and the Respondent / Counter-Claimant could not forward such document to
the bank. The Respondent / Counter-Claimant held that those salaries could
have been paid, but that he was unable to check it;
b. USD 1,750,000 as compensation for breach of contract corresponding to the
residual value of the contract;
c. USD 1,000,000 as a “supplementary compensation of six months salary […] in
accordance with art. 337 c §3 of the Swiss Code of Obligation”;
d. The Respondent / Counter-Claimant further requested that the club be
ordered to provide him with “the fiscal payment demonstrating the payment
of taxes”.
23.
On the facts of the case, the Respondent / Counter-Claimant held that in July 2017 he
suffered an injury which led him to receive surgery on his knee on 11 July 2017. He
held that because of the careless attitude of the Claimant / Counter-Respondent which
made him train more than necessary while he was still recovering, he relapsed into his
injury.
24.
According to the Respondent / Counter-Claimant, due to the proximity of the closing
of the transfer window, the Claimant / Counter-Respondent was pressuring him into
signing the loan agreement while he was not even provided at first with the draft
contract with the intervening party. The Respondent / Counter-Claimant emphasised
that he was not in direct contact with the intervening party during that time.
25.
The Respondent / Counter-Claimant argued that since the termination was sent by a
lawyers’ firm which did not have a valid power of attorney at that time, it could not
be considered valid and that in any case, he considered that he was effectively notified
of the termination on 18 February 2018 via a letter dated 15 February 2018.
26.
The Respondent / Counter-Claimant further considered that the Claimant / CounterRespondent had no just cause to terminate the contract as art. 10 para.1 of the contract
consisted in “the illicit deprivation of the [Respondent / Counter-Claimant]’s freedom
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to decide on the terms of his employment as well as his freedom of selecting the
employer”. He considered that it was his right to deny the loan and to request to stay
in the Claimant / Counter-Respondent.
27.
Moreover, the Respondent / Counter-Claimant added that his salary would have been
lowered considerably without his consent due to the loan.
28.
On his injury, the Respondent / Counter-Claimant denied having lied about his state,
and held that he was in the recovery process of his previous injury and that the
intervening party should have been made aware of that.
29.
In its replica, the Claimant / Counter-Respondent argued that the salaries of January
and February 2018 had been paid to the Respondent / Counter-Claimant and provided
payment receipts in this regard.
30.
In regards to art. 10 of the contract, the Claimant / Counter-Respondent held that the
Respondent / Counter-Claimant signed the contract willingly and was aware of the
existence of this article.
31.
The Claimant / Counter-Respondent reiterated his other arguments.
32.
The Claimant / Counter-Respondent confirmed its request for relief (cf. para 22 above),
but alternatively and should FIFA consider that it had terminated the contract without
just cause, then it requested that the Respondent / Counter-Claimant would be entitled
to USD 875,000 in accordance with art. 2 of the contract. Art. 2 entitled the player to
USD 1,000,000 which should not be superior to 50% of the residual value, hence the
Claimant / Counter-Respondent reduced it to USD 875,000.
33.
In his duplica, the Respondent / Counter-Claimant reiterated his arguments, and
amended his claim, acknowledging that he received the salaries of January and
February 2018. His claim remained the same as to the rest, claiming the total amount
of USD 2,750,000.
34.
The intervening party held that the Claimant / Counter-Respondent had assured it of
the Respondent / Counter-Claimant’s consent to be loaned, but that was not the case,
so the loan was never signed by the parties.
35.
The intervening party further held that it was contacted by the Respondent / CounterClaimant following the termination of the contract by Claimant / Counter-Respondent
and not before that. Following that, the intervening party requested further
information to assure that the Respondent / Counter-Claimant was free of any contract.
36.
It also underlined that it was not a party to the current proceedings but was only
contacted as an intervening party, and that it did not induce the Respondent / CounterClaimant, since the contract was terminated by Claimant / Counter-Respondent.
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37.
According to the information currently available on the Transfer Matching System
(TMS), the player signed an employment contract with the intervening party valid as
from 1 May 2018 until 30 November 2020, with a monthly salary of USD 25,000 for the
period between 1 May 2018 until 30 November 2018 and a monthly salary of USD
30,000 for the period between 1 December 2018 until 30 November 2020.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at stake. In this
respect, the DRC took note that the present matter was submitted to FIFA on 16
February 2018. Consequently, the DRC concluded that the 2018 edition of the Rules
Governing the Procedures of 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 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition October 2019),
the DRC is competent to deal with the matter at stake, which concerns an employment–
related dispute with an international dimension between a Chinese club, a Filipino
player and a Thai club.
3.
Furthermore, the DRC 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, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations (edition October 2019) and considering that the present claim was lodged
in front of FIFA on 16 February 2018, the January 2018 edition of the Regulations on
the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the members of the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the DRC
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. In particular, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the
scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the TMS.
5.
In particular, the DRC acknowledged that the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant concluded an employment contract valid as from 1
January 2017 until 31 December 2018, and that on 3 February 2018, the Claimant /
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Counter-Respondent and the intervening party signed a loan agreement for the
temporary transfer of the Respondent / Counter-Claimant from the former to the latter
valid as from 4 February 2018 until 30 November 2018.
6.
In continuation, the DRC duly noted that the Respondent / Counter-Claimant did not
enter into an employment contract with the intervening party at that time.
7.
In this respect, the Chamber observed that the Claimant / Counter-Respondent
considered that according to art. 10 of the contract, the Respondent / CounterClaimant had an obligation to accept the temporary transfer it had agreed with the
intervening party in view of the fact that the conditions of said clause had been met,
and that the Respondent / Counter-Claimant’s refusal led the Claimant / CounterRespondent to rightfully terminate the contract and claim compensation accordingly,
in line with the provisions set out in this regard in the contract.
8.
The Chamber also acknowledged the position of the intervening party, and in
particular that it asserted that it entered into an employment contract with the
Respondent / Counter-Claimant only after his contract was unilaterally terminated by
the Claimant / Counter-Respondent and that in this respect it could not and did not
induce the termination.
9.
The foregoing having been said, the Chamber pointed out that the underlying issue in
the present dispute was to establish whether the Claimant / Counter-Respondent had
just cause to terminate the employment contract.
10.
In this context, the DRC first noted that according to art. 10 of the contract, the
Claimant / Counter-Respondent may loan the Respondent / Counter-Claimant to
another club if the transaction foresees that the Respondent / Counter-Claimant would
receive at least 70% of the salary he is entitled to under the terms of the contract.
What is more, said clause stipulates that the Respondent / Counter-Claimant “shall
unconditionally agree to the transfer of loan” and refusal to do so would give the
Claimant / Counter-Respondent the right to terminate the contract with just cause and
claim compensation from the Respondent / Counter-Claimant which shall correspond
to “the total amount of transfer fee, agent fee, legal fee” the Claimant / CounterRespondent paid in relation to the transfer of the Respondent / Counter-Claimant on
20 January 2015, as well as the full value of the contract.
11.
In addition, the Chamber noted that the Claimant / Counter-Respondent and the
intervening party had agreed to the temporary transfer of the Respondent / CounterClaimant on 3 February 2018, and that the Respondent / Counter-Claimant was
informed by the Claimant / Counter-Respondent that he would receive a monthly salary
of USD 30,000 from the intervening party for the duration of the loan, and that the
Claimant / Counter-Respondent would pay an additional fee in order for his salary to
reach the 70% threshold in line with art. 10 of the contract.
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12.
The DRC, however, was keen to highlight that the Respondent / Counter-Claimant did
not countersign this loan agreement.
13.
Furthermore, the Chamber pointed out that the Respondent / Counter-Claimant
neither signed an employment contract with the intervening party in relation to the
temporary transfer. What is more, the Chamber duly noted that the Respondent /
Counter-Claimant expressed his disapproval as to the temporary transfer and, in
particular, at the financial terms that had been presented to him.
14.
In any case, the DRC underlined that art. 10 of the contract appeared to be unilateral
and to the benefit of the Claimant / Counter-Respondent only, in view of the fact that
it could loan the Respondent / Counter-Claimant out without his consent. What is
more, under these terms, the Respondent / Counter-Claimant may receive only 70% of
the remuneration originally foreseen in the contract, a situation that the Chamber
judged highly unfavourable for the Respondent / Counter-Claimant.
15.
In view of the above, the DRC concluded that the potestative character of art. 10 of
the contract could not be deemed acceptable and should therefore be considered
invalid. In fact, the DRC emphasised that such clause constituted an impediment to the
player’s freedom of movement and freedom to provide services, principles that are at
the core of the Regulations.
16.
Therefore, the Chamber concurred that art. 10 of the contract does not constitute a
reason that can be validly invoked by the Claimant / Counter-Respondent nor a legal
basis to unilaterally terminate the contract.
17.
Consequently, the Chamber determined that the Claimant / Counter-Respondent did
not have just cause to terminate the contract under the auspices of art. 10 of the
contract. Consequently, the DRC concluded that the Claimant / Counter-Respondent is
to be held liable for the early termination of the employment contract without just
cause.
18.
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 Claimant / Counter-Respondent.
19.
In this respect, the Chamber decided that, taking into consideration art. 17 par. 1 of
the Regulations on the Status and Transfer of Players, the Respondent / CounterClaimant is entitled to receive from the Claimant / Counter-Respondent compensation
for breach of contract on the basis of the relevant employment contract.
20.
In this context, the Chamber outlined that, in accordance with said provision, 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,
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including, in particular, the remuneration and other benefits due to the Respondent /
Counter-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.
21.
In application of the relevant provision, the DRC held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which
the parties had beforehand agreed upon a compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that
the contract contained provisions with regards to the termination of the contract by
the parties. In fact, the DRC remarked that the contract contained clauses regarding
the unilateral termination by one of the parties. The Chamber, however, was keen to
highlight that these provisions were not reciprocal: whilst art. 10 and art. 11 para. b)
of the contract set out a fixed amount of compensation to be paid to the Claimant /
Counter-Respondent in case of breach of contract and/or termination without just
cause from the Respondent / Counter-Claimant, art. 11 para. a) merely indicated that
a “penalty” of an unspecified amount would be due to the Respondent / CounterClaimant in the opposite scenario. Therefore, the Chamber concluded that there was
no valid compensation clause that could be taken into account.
22.
Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the Chamber took into account the remuneration due to the Respondent
/ Counter-Claimant in accordance with the employment contract as well as the time
remaining on the same contract, along with the professional situation of the
Respondent / Counter-Claimant after the early termination occurred. At the time of
the termination of the employment contract on 14 February 2018, the contract would
have run until 31 December 2018, i.e. for another 10 months. Consequently, the
Chamber concluded that the remaining value of the contract as from its early
termination by the Claimant / Counter-Respondent until the natural expiry of the
contract amounts to USD 1,666,667 and that such amount shall serve as the basis for
the final determination of the amount of compensation for breach of contract.
23.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute the Respondent / CounterClaimant had found new employment with the intervening party, in accordance with
which he would be remunerated with a monthly salary of USD 25,000 starting as from
1 May 2018 until 30 November 2018, and then a monthly salary of USD 30,000 as from
1 December 2018 until 30 November 2020. Consequently, in line with the constant
practice of the DRC and the general obligation of the Respondent / Counter-Claimant
to mitigate his damages, such remuneration under the new employment contract shall
be taken into account in the calculation of the amount of compensation for breach of
contract.
24.
In view of all of the above, the Chamber decided to partially accept the claim of the
Respondent / Counter-Claimant, and concluded that the Claimant / CounterRespondent must pay the amount of USD 1,461,667 to the Respondent / Counter-
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Claimant as compensation for breach of contract without just cause, which is
considered by the Chamber to be a reasonable and justified amount as compensation.
25.
In addition, the DRC established that any further claim lodged by the Respondent /
Counter-Claimant is rejected.
26.
Finally, the Chamber ended its deliberations in the present matter by establishing that
the claim lodged by the Claimant / Counter-Respondent is rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Henan FC is rejected.
2.
The counterclaim of the Respondent / Counter-Claimant, Javier Patino Lachica is
partially accepted.
3.
The Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant,
compensation for breach of contract in the amount of USD 1,461,667, w ithin 30 day s
as from the date of notification of this decision.
4.
In the event that the amount due to the Respondent/ Counter-Claimant in accordance
with the above-mentioned number 3. is not paid by the Claimant / Counter-Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of
the aforementioned time limit and 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 Respondent / Counter-Claimant is rejected.
6.
The Respondent / Counter-Claimant is directed to inform the Claimant/ CounterRespondent 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 related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the
DRC. Where such decisions contain confidential information, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
Club Henan Jianye, China / Player Javier Patino Lachica, Philippines / Club Burinam United, Thailand
Page 12 of 13
According to article 58 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. 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.
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:
Emilio García Silvero
Chief Legal & Compliance Officer
Club Henan Jianye, China / Player Javier Patino Lachica, Philippines / Club Burinam United, Thailand
Page 13 of 13