F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 24 November 2016
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 November 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (country G), member
Takuya Yamazaki (Japan), member
on the claim presented by the player,
Player A, country B,
as Claimant/Counter-Respondent 1
against the club,
Club C, country D,
as Respondent/Counter-Claimant
with the club,
Club E, country F,
as Counter-Respondent 2
regarding an employment-related dispute arisen between the parties.
I. Facts of the case
1. On 10 August 2010, the player from country B, Player A (hereinafter: player or Claimant/Counter-Respondent 1), born on 20 February 1990, and the club from country D, Club C (hereinafter: Club C or Respondent/Counter-Claimant), signed an employment contract valid as from 1 July 2010 until 31 May 2013 (hereinafter: first contract). On 30 April 2012, the parties signed a second contract that inter alia modified the duration of their contractual relationship as from 1 June 2013 until 31 May 2016 (hereinafter: second contract).
2. According to art. 4.1 of the second contract, Club C undertook to pay the player:
EUR 321,000 for the sporting season 2013/2014, as follows: EUR 85,500 in August 2013, EUR 10,500 in October 2013, a monthly EUR 10,000 over 10 months starting as from August 2013 and EUR 125,000 payable over 34 league matches. In this respect, the contract stipulates that the player shall receive 100% of the relevant amount per match if he was in the team’s starting 11, 75% thereof if the he entered the match as a substitute and 50% of it if the player stayed on the bench;
EUR 374,500 for the sporting season 2014/2015, as follows: EUR 112,250 in August 2014, EUR 12,250 in October 2014, a monthly EUR 10,000 over 10 months starting as from August 2014 and EUR 150,000 payable over 34 league matches (Note: the aforementioned percentage system also applies to these per match payments);
EUR 428,000 for the sporting season 2015/2016, as follows: EUR 139,000 in August 2015, EUR 14,000 in October 2015, a monthly EUR 10,000 over 10 months starting as from August 2015 and EUR 175,000 payable over 34 league matches (Note: the aforementioned percentage system also applies to these per match payments).
3. According to a provision that was also included in the first contract, the player and Club C agreed in art. 5 a) of the second contract that the player “is a free agent. In case, any other 3rd party shall ask any licence, compensation and/or loyalty fee: player agrees to pay this amount on [Club C] shall deduct this amount from player’s remuneration.”
4. According to art. 5 j) and k) of the second contract, Club C undertook to provide the player with a car, to pay the player’s rent for the duration of the contract and to provide him with 2 round trip economy flight tickets per season to country G.
5. On 5 September 2013, the parties agreed to transfer the player on a loan basis to the Club H from country D until 31 May 2014, which loan was prematurely terminated in April 2014.
6. On or about 6 August 2014, the player resumed rendering his services to Club C.
7. On 13 September 2014, Club C replied to a correspondence of the player reportedly dated 10 September 2014 and inter alia held that whereas the player had stated that he was a free agent, the Dispute Resolution Chamber ordered Club C to pay EUR 260,000 as training compensation to the Club I from country G (hereinafter: Club I) in relation to the player. Club C informed the player that in line with art. 5 a) of the contract, it had decided to deduct such amount from the player’s remuneration.
8. On 5 November 2014, the player informed Club C in writing of his decision to terminate the contract. In the relevant termination notice, the player held that (i) Club C’s request that he would admit having received his salaries against Club C’s authorisation to let him travel to the country F was unacceptable and that (ii) the provision of art. 5 a) of the second contract is not applicable to the player.
9. On 21 February 2015, the player and the Club E from country F (hereinafter: Club E or Counter-Respondent 2) signed an employment contract valid as from 1 January 2015 until 31 December 2015 and extendable as from 1 January 2016 until 31 December 2016 and as from 1 January 2017 until 31 December 2017. According to said contract, the player was to receive a fixed salary of USD 85,000 during the first season, USD 115,000 during the second season and USD 160,000 during the third season. According to the information contained in Transfer Matching System, the player has remained registered with Club E until at least November 2016.
Claim of the player:
10. On 7 April 2015, the player lodged a claim before FIFA against Club C maintaining that due to Club C’s breach of its obligations, he had just cause to terminate the employment contract. Therefore, and after having amended his claim, the player requested that Club C be ordered to pay him the following amounts:
o EUR 276,460.67 as outstanding remuneration, composed of:
EUR 10,000 as salary for the month of May 2014;
EUR 30,000 as monthly salaries for the months of August until October 2014;
EUR 1,666.67 pro rata as monthly salary for the month of November 2014;
EUR 112,250 as contractual payment due in August 2014;
EUR 12,250 as contractual payment due in October 2014;
EUR 110,294 as match bonuses related to the 2013/2014 season based on the allegation that the player played 30 matches with Club H.
5% interest on each of the aforesaid amounts, accrued as of the relevant due dates.
o EUR 862,305.33 as compensation for breach of contract, composed of:
EUR 68,333,33 as monthly salaries calculated as from 6 November 2014 until 31 May 2015;
EUR 149,974 as match bonuses related to the sporting season 2014/2015;
EUR 428,000 corresponding to the player’s entire remuneration for the sporting season 2015/2016;
EUR 44,000 in relation to accommodation for two sporting seasons;
EUR 22,000 in relation to car-rental expenses for two sporting seasons;
EUR 150,000 as moral damages for the player’s psychological, financial and sportive ordeals.
5% interest accrued as of the date of the claim.
11. According to the player, the club where he was on loan, Club H, terminated the relevant employment contract in April 2014, as a result of which his contract with Club C was no longer suspended and his salary for May 2014 was due.
12. He further held that after he resumed his duties at Club C, the latter neither provided him with his benefits, i.e. a car and an apartment, nor did it pay his salaries of August 2014, September 2014 and October 2014.
13. In addition, according to the player, in November 2014, he suggested to Club C that his transfer could be a solution, to which Club C seemed to have agreed. However, when he requested Club C’s authorisation to pass a test for a club in country F, Club C objected and continued to withhold the payment of his salaries.
Reply to the claim and the counterclaim of Club C against the player and Club E:
14. Club C stressed that contrary to the player’s statement, his loan to Club H ended on 24 April 2014 as a result of a mutual agreement. In this respect, it submitted a copy of a computer print-out from the Football Federation of country D’s records reading that the loan at stake was mutually terminated on 24 April 2014. On the basis of the aforementioned, Club C held that since the loan was to last until 31 May 2014, it did not have to pay the player’s salary for the month of May 2014.
15. In relation to the car the player claimed he was not provided with, Club C submitted a document signed by the player inter alia reading that he was provided with a car on 10 September 2014.
16. Equally, and with respect to the player’s claim that Club C breached the contract by not accommodating him in an apartment, Club C submitted a document dated 16 September 2014 signed by the player, in which he waived his right and declared that he would be happy to stay accommodated in the Club C’s facilities.
17. As to the offset of the player’s remuneration with the amount of training compensation that Club C was ordered to pay on the basis of the aforementioned decision of the Dispute Resolution Chamber (DRC), and a copy of which was provided by Club C, the latter referred in its defence to art. 5 a) of the second contract. Additionally, Club C presented a statement dated 10 August 2010 signed by the player inter alia reading that “in the event of a person or a Club request [from Club C] ‘training compensation’ or ‘solidarity contribution’ or any other compensation and in the event that this compensation is paid [by Club C], I accept and declare that, the amount paid by [Club C] will be deducted from my due”. Said statement further reads that if the player’s salary was insufficient to carry out the offset, the player would pay Club C the balance.
18. In this respect, Club C added that since said DRC decision was notified on 5 December 2013, it had to wait for the player’s return from his loan to implement the mechanism provided for in art. 5 a) of the second contract.
19. In continuation, Club C explained that considering the player’s remuneration and the fact that he did not play in any match for Club C, it owed EUR 156,166.67 to the player as at 5 November 2014. However, bearing in mind that Club C was ordered to pay EUR 260,000 to Club I, Club C considered that based on art. 5 a) of the second contract and the player’s written guarantee, it is the player who owes the amount of EUR 103,833.33 to Club C.
20. On account of the above, Club C deemed that the player terminated the contract without just cause.
21. In addition to the above, Club C stressed that the player already had started negotiations with clubs from country F and therefore “tried to establish a ground to leave [Club C] right before the termination.” In this respect, Club C submitted a copy of an email from the player’s agent dated 1 November 2014 reading “[I] organised a series of tests in professional clubs from country F. [I] request your permission to let [me] go to do some trials in the [country F] (…) from November 5 to December 7, 2014 and will start with the Club J.”
22. Club C, who reports it orally informed the player of its objection to said request, considered that said email shows that the player had already organised this journey and that he acted in bad faith when he decided to leave Club C without permission.
23. According to Club C, the parties’ exchanges show that the player (i) knew why Club C was withholding his remuneration and (ii) terminated the contract without just cause under the unjustified allegation that Club C was not remunerating him. In this respect, Club C asserted that it did not let the player without resources as it paid him twice EUR 1,000, on 16 September and 24 October 2014, and twice 350, on 22 October and 28 October 2014. In this respect, Club C submitted copies of the four relevant payment receipts bearing the player’s signatures.
24. On account of all the above, Club C held that the player terminated the contract without just cause and, on 1 June 2015 it lodged a counterclaim against the player and Club E maintaining that the player’s unjustified termination of contract during the protected period shall lead him and Club E to be ordered to pay to Club C the following amounts:
EUR 496,333.33 as compensation for breach of contract, i.e. the residual value of the second contract;
EUR 103,833.33 corresponding to the balance between the player’s virtual receivables and the amount of compensation paid by the club to Club I;
5% interest on the amount of EUR 600,166.66, calculated as of 5 November 2014;
The costs of the present procedure.
Club C further asked that based on art. 17 par. 3 of the Regulations on the Status and Transfer of Players, the player be restricted to play for four months.
Player’s reply to the counterclaim:
25. The player asserted that art. 5 a) of the second contract is not related to training compensation, but refers to a situation in which Club C would have been jointly liable to pay compensation to a third party club based on art. 17 par. 2 of the FIFA Regulations. According to the player, Club C’s argument is therefore irrelevant and it is because Club C was aware of such irrelevance that it had the player sign the statement dated 10 August 2010.
26. Should it be considered that art. 5 a) of the second contract encompasses training compensation, the player deemed that said clause is illegal and needs to be rejected as it goes against the spirit and the wording of the regulations, which set forth that payments in relation to training compensation are to be proceeded with between clubs only.
27. Additionally, the player held that he was not the initiator or author of the declaration dated 10 August 2010, that he did not speak English and that Club C made him sign such statement in the absence of his advisers.
28. Moreover, the player held that Club C manipulated him since no player would have undertaken to pay an amount equivalent to two years of salary immediately after signing a contract and this without any counterpart on the club’s side.
29. In this respect, the player held that his statement of 10 August 2010 shall be deemed null and void and that Club C had no valid reason not to pay him his receivables.
30. Should the aforementioned arguments be rejected, the player argued that not only was he never called by Club C in the matter having opposed Club C to Club I, but also, in line with CAS jurisprudence, the debt at stake cannot be offset against his remuneration since it is disproportionate and does not involve the same debtors/creditors.
31. Furthermore, the player deemed that Club C acted in bad faith since it knew that by recruiting a 20 years old player from country B, training compensation provisions would apply to the transfer and that a statement from the player was not reliable enough or would not validly exempt it from having to pay training compensation.
Reply of Club E to the counterclaim:
32. Club E considered that whilst the player always complied with his obligations, Club C failed to fulfil its obligations and did not present any valid reason justifying such conduct. Consequently, Club E deemed that the player had just cause to terminate the contract and that Club C’s counterclaim needs to be rejected.
33. Club E qualified Club C’s argumentation related to the offset of the parties’ alleged respective credits unsustainable. Indeed, as the (spirit of) the regulations related to training compensation forbid to shift the burden of its payment onto players, a private agreement between two parties cannot derogate from such rule and the club acted in bad faith when it included such provision in the second contract. In this respect, Club E deemed that Club C also behaved in a negligent way in 2010 as it should have had obtained the player’s passport before recruiting him.
34. Additionally, Club E challenged the enforceability of the player’s statement dated 10 August 2010 as it deemed that given its nature of unilateral declaration, i.e. Club C did not sign it, said declaration cannot stand as a valid amendment to the second contract signed by the player and Club C.
35. Furthermore, Club E stressed that the player did not take part in the training compensation related proceedings and that if his statement was enforceable, the player would be in a situation where he would have to work for no remuneration or worse, to be seen as having to pay to work for three years.
36. Alternatively, and should this Chamber deem the offset operation admissible, Club E argued that since Club C paid the player less than the minimum wage although it was bound to do so under art. 323 b) of the Swiss Code of Obligations, the player still had just cause to terminate the second contract.
37. As to the question as to whether Club E induced the player to breach the second contract, Club E held that it is clear that it is not responsible for any wrongdoing and that, despite the wording of the relevant article of the Regulations, it shall be exempted from any liability. In this respect, Club E stressed that the facts show that it is only after the player terminated the second contract with just cause that he entered into negotiations with it.
38. In the unlikely event that it was found that the player did not have just cause to terminate the contract, Club E argued that the amount of compensation claimed by Club C shall be “drastically reduced, or rather set at zero.”
39. Indeed, and as to Club C’s request to be granted EUR 496,333.33 based on the residual value of the second contract, Club E held that in line with Swiss law, CAS jurisprudence and the doctrine of positive interest, said amount was saved by Club C and does not qualify as a damage.
40. As to Club C’s request to be paid the balance between the player’s remuneration and the sum it was ordered to pay as training compensation, Club E held that Club C is to be seen as having already amortised said amount (EUR 103,833.33) as it benefited from the player’s services until the expiry of the duration of the first contact.
41. In continuation, Club E pointed out that after having loaned the player for free for one year to a lower division club, Club C left him out of the club’s plans and did not field him with its first squad. As it thus appears that Club C was no longer interested in the player’s services, the player’s early termination of the contract rather permitted Club C to avoid continuing to pay until May 2016 the salary of a player it was no longer interested in.
42. Finally, Club E deemed that even if it would be considered that the player terminated the contract without just cause, quod non, Club C contributed to the termination in such a significant manner that the termination is attributable to Club C. As such, the DRC shall deprive the club from receiving any compensation.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 7 April 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2016) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B, a club from country D and a club from country F.
3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the present claim was lodged on 7 April 2015, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.
4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.
5. In this respect, the Chamber acknowledged that the Claimant/Counter-Respondent 1 and the Respondent/Counter-Claimant were contractually bound by means of the second contract as from 1 June 2013 until 31 May 2016 and that during the 2013-2014 season the Claimant/Counter-Respondent 1 was transferred on a loan basis to another club from country D.
6. The members of the Chamber noted that according to the Claimant/Counter-Respondent 1, the unjustified non-compliance by the Respondent/Counter-Claimant with its contractual financial obligations during several months gave him just cause to proceed to the termination of the second contract on 5 November 2014.
7. In continuation, the Chamber duly noted that the Respondent/Counter-Claimant, for its part, argued that the Claimant/Counter-Respondent 1’s termination of the employment contract was deprived of just cause, since the Claimant/Counter-Respondent 1 had agreed in writing, on the basis of art. 5 a) of the second contract as well as on the basis of his written statement dated and signed on 10 August 2010, that the Respondent/Counter-Claimant was entitled to make deductions from his remuneration in the context of the training compensation that the Respondent/Counter-Claimant was ordered to pay to the player’s former club.
8. Additionally, the Chamber noted that as a result of what the Respondent/Counter-Claimant considered to be an unlawful termination of contract by the Claimant/Counter-Respondent 1, it had lodged a counterclaim against him and his new club, i.e. the Counter-Respondent 2.
9. Having said that, the Chamber noted that the Counter-Respondent 2 rejected the counterclaim inter alia maintaining that the Respondent/Counter-Claimant’s argumentation was unsustainable and that, therefore, the Claimant/Counter-Respondent 1 had just cause to terminate the contract.
10. Additionally, the Chamber took note of Club E’s argument that the time line of the events at stake showed that it did not play any role in the Claimant/Counter-Respondent 1’s decision to put an end to the contract he had signed with the Respondent/Counter-Claimant.
11. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant/Counter-Respondent 1 and the position of the Respondent/Counter-Claimant, was to determine as to whether the relevant employment contract had been terminated with or without just cause by the Claimant/Counter-Respondent 1, which party was responsible for the early termination of the contractual relationship in question and, subsequently, to decide on the consequences thereof.
12. In continuation, given the Respondent/Counter-Claimant’s argumentation that it was contractually entitled to withhold the Claimant/Counter-Respondent 1’s remuneration and that it, thus, did not act in breach of its financial obligations, the Chamber deemed relevant to first turn its attention to the contents of art. 5 a) of the second contract.
13. In this respect, the Chamber noted that according to said provision, the parties agreed that the Claimant/Counter-Respondent 1 “is a free agent. In case, any other 3rd party shall ask any licence, compensation and/or loyalty fee: player agrees to pay this amount on [Club C] shall deduct this amount from player’s remuneration.”
14. After an analysis of the of the above-quoted clause, the members of the Chamber unanimously agreed that contrary to the Respondent/Counter-Claimant’s stance in this regard, the relevant terms could not be reasonably and clearly construed as an acceptance by the Claimant/Counter-Respondent 1 that the Respondent/Counter-Claimant could deduct the amount of training compensation from his contractual remuneration should the Respondent/Counter-Claimant be ordered to pay training compensation to a third party club.
15. In particular, the Chamber stressed that the wording of said clause was not specific enough so as to reflect an agreement by and between the parties to include payment(s) related to training compensation in the scope of the above-described mechanism.
16. Having so found, the Chamber continued its analysis and consequently turned its attention to the statement dated 10 August 2010 signed by the Claimant/Counter-Respondent 1 (cf. number I./17. above), which was equally invoked by the Respondent/Counter-Claimant in support of its argumentation that it was entitled to deduct the amount of training compensation from the contractual remuneration of Claimant/Counter-Respondent.
17. In this respect, and after a careful analysis of the wording of said statement, the members of the Chamber concluded that contrary to art. 5 a) of the second contract, its terms were explicit and left no room for interpretation. In particular, the Chamber noted that said statement indeed reads that “in the event of a person or a Club request [from Club C] ‘training compensation’ [emphasis added] or ‘solidarity contribution’ or any other compensation and in the event that this compensation is paid [by Club C], I accept and declare that, the amount paid by [Club C] will be deducted from my due (…) [and] also accept and declare that, if the deduction remain insufficient I will pay the amount paid by [Club C] to [Club C].”
18. On this basis, the members of the Chamber agreed that with this statement, the Claimant/Counter-Respondent 1 had inter alia accepted that the amount of training compensation be deducted from his remuneration by the Respondent/Counter-Claimant, should the latter be ordered to pay training compensation to another club, which eventually occurred on 5 December 2013.
19. With respect to the allegation of the Claimant/Counter-Respondent 1 that the relevant statement dated 10 August 2010 was written in English and signed in the absence of his advisers, as a result of which the Claimant/Counter-Respondent 1 appears to imply that he had no knowledge of its contents, the Chamber deemed it fit to emphasise that a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility. Consequently, the Chamber concluded that such argument could not be upheld.
20. However, the members of the Chamber took into consideration that the amount of training compensation of EUR 260,000 that the Respondent/Counter-Claimant had to pay to Club I represents more than 115% of the value of the Claimant/Counter-Respondent 1’s fixed remuneration for the entire sporting season 2014/2015, namely EUR 224,500. No variable remuneration had been earned by the Claimant/Counter-Respondent 1 given that he did not play in any match with the Respondent/Counter-Claimant since the beginning of the sporting season 2014/2015. What is more, with respect to the 2013-2014 season, during which the Claimant/Counter-Respondent 1 was registered with another club on a loan basis, said training compensation amount even represents more than 132% of the value of the player’s fixed remuneration for that season on the basis of employment contract between the parties, i.e. EUR 196,000.
21. The Chamber agreed that said sum of training compensation must be considered excessive in relation to the yearly income of the Claimant/Counter-Respondent 1 and that as a result of the relevant amount of training compensation being disproportionate, the members of the Chamber concurred that the Claimant/Counter-Respondent 1’s statement dated 10 August 2010 could not be considered as legally binding on the Claimant/Counter-Respondent 1 and could not be validly invoked by the Respondent/Counter-Claimant as a reason not to pay the Claimant/Counter-Respondent 1’s remuneration.
22. In this context, the members of the Chamber highlighted that the Respondent/Counter-Claimant had not presented any other reasons possibly justifying the non-payment of the Claimant/Counter-Respondent 1’s remuneration as of August 2014.
23. On account of all of the above considerations, the Chamber decided that the Respondent/Counter-Claimant had no valid grounds to withhold the Claimant/Counter-Respondent 1’s remuneration and decided to reject the arguments put forward by the Respondent/Counter-Claimant in its defence.
24. Consequently, the Chamber decided that the Claimant/Counter-Respondent 1 had just cause to terminate the employment contract with effect as of 5 November 2014, at which point in time at least all payments due to the Claimant/Counter-Respondent 1 as of August 2014 in accordance with the second contract had remained outstanding, and that the Respondent/Counter-Claimant is to be held liable for the early termination of the contract with just cause by the Claimant/Counter-Respondent 1.
25. Subsequently, the Chamber further decided that as consequence of the aforementioned findings, the Respondent/Counter-Claimant’s counterclaim against the Claimant/Counter-Respondent 1 and Club E was rejected.
26. Having established that the Respondent/Counter-Claimant is to be held liable for the early termination of the employment contract with just cause by the Claimant/Counter-Respondent 1, the Chamber focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant/Counter-Respondent 1 is entitled to receive compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.
27. Having said that, the Chamber first addressed the Claimant/Counter-Respondent 1’s claim related to his salary for the month of May 2014 and took into account that the Claimant/Counter-Respondent 1 was on loan with Club H until 31 May 2014, which employment relation was terminated by mutual consent in April 2014. Bearing in mind the Claimant/Counter-Respondent 1’s statement under point I./11. above, it has remained undisputed that the employment contract between the Claimant/Counter-Respondent 1 and the Respondent/Counter-Claimant was suspended during the relevant loan period. In this respect, the Chamber agreed with the Respondent/Counter-Claimant that on the basis of these circumstances it had no obligation to pay the Claimant/Counter-Respondent 1’s salary for the month of May 2014.
28. Consequently, the Chamber decided that the Claimant/Counter-Respondent 1’s claim relating to his salary for May 2014 had to be rejected.
29. In continuation, the Chamber established that until the date of termination of the employment contract on 5 November 2014, the following payments in the total amount of EUR 154,500 had fallen due and remained outstanding: three monthly salaries of EUR 10,000 each (August, September and October 2014), EUR 112,250 payable in August 2014 and EUR 12,250 payable in October 2014.
30. However, the Chamber was eager to note that based on the information available on file, it was undisputed that the Respondent/Counter-Claimant paid the amounts of EUR 2,000 and 700 over said period of time (cf. I./23. above), totalling approximately EUR 2,195, to the Claimant/Counter-Respondent 1.
31. Having so found, the Chamber turned its attention to the Claimant/Counter-Respondent 1’s claim related to match bonuses in the amount of EUR 110,294 in connection with the 2013-2014 season.
32. In this respect, the Chamber referred to art. 12 par. 3 of the Procedural Rules and recalled that whereas said provision establishes that any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Claimant/Counter-Respondent 1’s claim at hand had not been corroborated by documentary evidence.
33. What is more, the Chamber recalled that during the 2013-2014 season the Claimant/Counter-Respondent 1 was on loan with Club H and that the employment contract with the Respondent/Counter-Claimant had been suspended during the relevant period of time (cf. point II./26. above). In this regard, the Chamber held that there was no information on file permitting to consider that the Respondent/Counter-Claimant had undertaken to pay to the Claimant/Counter-Respondent 1 bonuses related to matches the Claimant/Counter-Respondent 1 (allegedly) played with Club H during the loan period in the 2013-2014 season.
34. Therefore, the Chamber decided that the Claimant/Counter-Respondent 1’s claim pertaining to match bonuses for the 2013-2014 season equally had to be rejected.
35. On account of the above and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent/Counter-Claimant is liable to pay to the Claimant/Counter-Respondent 1 the amount of EUR 152,305 in connection with outstanding remuneration due to the Claimant/Counter-Respondent 1 in accordance with the relevant employment contract.
36. To conclude in this respect, and taking into consideration the Claimant/Counter-Respondent 1’s claim, the Chamber decided to award the Claimant/Counter-Respondent 1 interest at the rate of 5% p.a. as of the day following the day on which each of the payments included in the global amount of EUR 152,305 fell due in accordance with the pertinent employment contract, taking into account the payments already made by the Respondent/Counter-Claimant (cf. points I./23. and II./30. above).
37. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant/Counter-Respondent 1 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.
38. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.
39. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent 1 had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.
40. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant/Counter-Respondent 1 under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation.
41. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the remuneration payable to the Claimant/Counter-Respondent 1 under the terms of the pertinent employment contract as from its date of termination with just cause by the Claimant/Counter-Respondent 1, i.e. 5 November 2014, until 31 May 2016, and concluded that the Claimant/Counter-Respondent 1 would have earned in total EUR 323,000 as fixed remuneration had the contract been executed until its expiry date.
42. In this regard, the Chamber stressed that the remittance and the amount of league match payments are variable and uncertain since they are linked to matches to be played in the future, i.e. after the termination of the relevant contract, and, therefore, are hypothetical. Consequently, the Chamber did not take into consideration the amounts related to league matches while assessing the residual value of the pertinent employment contract for the purpose of establishing the amount of compensation.
43. In addition, in the absence of a monetary value in the relevant contractual conditions relating to accommodation and a car and of documentary evidence in this connection, the Chamber concluded that said fringe benefits, the value of which was set at EUR 44,000 and EUR 22,000, respectively, by the Claimant/Counter-Respondent 1 in his claim for compensation, cannot be taken into consideration in the calculation of the amount of compensation for breach of contract.
44. Consequently, the Chamber established that the amount of EUR 323,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.
45. In continuation, the Chamber verified as to whether the Claimant/Counter-Respondent 1 had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the Claimant/Counter-Respondent 1’s general obligation to mitigate his damages.
46. The Chamber recalled that, on 21 February 2015, the Claimant/Counter-Respondent 1 signed an employment contract with Club E, valid until 31 December 2015, extendable until 31 December 2016 and subsequently extendable until 31 December 2017 and that the Claimant/Counter-Respondent 1 has remained registered with Club E until at least November 2016. Additionally, the Chamber recalled that in accordance with said contract, and up until the ordinary date of expiry of the relevant employment contract with the Respondent/Counter-Claimant, the Claimant/Counter-Respondent 1 was entitled to receive remuneration of USD 133,000, which equals the approximate sum of EUR 125,000.
47. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant/Counter-Respondent 1’s general obligation to mitigate his damages, the Chamber decided to partially accept the Claimant/Counter-Respondent 1’s claim and that the Respondent/Counter-Claimant must pay the amount of EUR 198,000 as compensation for breach of contract to the Claimant/Counter-Respondent 1.
48. In addition, taking into account the Claimant/Counter-Respondent 1’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent/Counter-Claimant must pay interest of 5% p.a. on the amount of compensation as of the date on which the Claimant/Counter-Respondent 1 lodged his claim against the Respondent/Counter-Claimant, i.e. 7 April 2015, until the date of effective payment.
49. Having so found, the DRC subsequently analysed the request of the Claimant/Counter-Respondent 1 related to compensation for moral damages in the amount of EUR 150,000.
50. In this regard, the Chamber deemed it appropriate to point out that since the request for said compensation presented by the Claimant/Counter-Respondent
1 had no legal or regulatory basis and that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered, the Chamber had to reject the Claimant/Counter-Respondent 1’s claim in this respect.
51. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant/Counter-Respondent 1 are rejected.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant/Counter-Respondent 1, Player A, is partially accepted.
2. The claim of the Respondent/Counter-Claimant, Club C, is rejected.
3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent 1, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 152,305 plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 1 September 2014 on the amount of EUR 10,000;
b. 5% p.a. as of 1 October 2014 on the amount of EUR 9,000;
c. 5% p.a. as of 1 November 2014 on the amount of EUR 8,805;
d. 5% p.a. as of 1 September 2014 on the amount of EUR 112,250;
e. 5% p.a. as of 1 November 2014 on the amount of EUR 12,250.
4. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent 1, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 198,000 plus 5% interest p.a. as from 7 April 2015 until the date of effective payment.
5. In the event that the amounts due to the Claimant/Counter-Respondent 1 in accordance with the above-mentioned numbers 3. and 4. are not paid by the Respondent/Counter-Claimant within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.
6. Any further claim lodged by the Claimant/Counter-Respondent 1 is rejected.
7. The Claimant/Counter-Respondent 1 is directed to inform the Respondent/Counter-Claimant immediately and directly of the account number to which the remittances are 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 art. 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, 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: info@tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl. CAS directives