(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

It is clear for the Panel that the Player indeed infringed
said obligations. It has been proven that the Club
asked the Player to sign the new contract in the terms
foreseen in clause 7.1 of the Agreement and that the
Player repeatedly refused to do so. This can be clearly
derived from the content of the correspondence
exchanged between the parties during the months of
December 2010 to May 2011, and was even admitted
by the Player at the hearing.
With regard to the consequences of such a breach,
the parties specifi cally ruled on them in the same
clause 7.1. of the Agreement in the following terms:
“ If the player refuses to extend this Contract he shall pay to
the Club the fi ne equal to the Player’s salary per 5 th season
stipulated in Appendix 1 of this Contract ”.
In line with it the Panel considers that the Player shall
be ordered to pay to the Club the sum contractually
agreed in clause 7.1 in fi ne. However this agreed sum
shall be reduced in (i) the amounts already retained by
the Club on account of such sum and (ii) the amounts
that the Player should have received for the days of
May 2010 he remained with the Club (17 days).
The sum contractually agreed in clause 7.1 in fi ne of
the Agreement is the Player’s salary for the 5 th season
stipulated in Appendix 1 of the Agreement, which is
to be quantifi ed, as per the Claimant’s request and
the additional agreements dated 20 February 2008
and 1 March 2009, in EUR 2.194.896 in accordance
with the following breakdown:
- Salary of the 5 th season: (177.519 x 12) EUR
2.130.228
- Accommodation payments: (5.389 x 12) EUR
64.668
The Club retained EUR 473.384 on account of the
sum contractually agreed in clause 7.1 (EUR 118.346
x 4 months -January to April 2010-). This has not
been contested by the Club.
The Player’s salary for the 17 days of May 2010
amounts EUR 81.312,14 in accordance with the
following breakdown:
- Salary: EUR 78.258,37 (138.103/30 x 17)
- Accommodation payments: EUR 3.053,77
(5.389/30 x 17)
Therefore the amount payable by the Player to
the Club is EUR 1.640,199,86, increased with the
corresponding interest, which in accordance with
article 102 et seq. of the Swiss Code of Obligations
(the “Swiss CO”) and the request of the Club in this
respect (“condemn the Respondent to pay 5% annual interest
on the amount awarded by the CAS from the date of the breach
of contract in accordance with Swiss Law”) is to be fi xed
in 5% per annum from the date of the Agreement’s
termination, i.e. as from 17 May 2010.
3. The termination of the Agreement by the Player.
Just cause or not.
The Panel shall now examine the termination of
the Agreement executed by the Player as well as the
consequences of such termination.
In this respect, the Panel notes that the Player holds
that he had just cause to terminate the Agreement
as the Club did not pay him the full agreed salary,
while the Club argues that it was entitled to pay a
reduced amount of salary to the Player at the time of
the Agreement’s termination and thus, that the Player
terminated such Agreement without just cause.
The Panel deems indisputable (in fact, it is admitted
by the parties) that from January 2010 on, the Player
did not receive the total agreed salary.
The discrepancy between the parties’ lies on the
Club’s legitimacy not to pay a very substantial part
of the Player’s salary on account or in application of
the penalty stipulated in clause 7.1 of the Agreement
given the breach of the Player’s duties under such
clause.
Therefore the Panel shall determine whether or not
such partial payment of the salary constituted just
cause and entitled the Player to unilaterally terminate
the Agreement.
In this regard, the Panel is aware that given the
rejection of the Player to sign the extension of his
contractual relationship with the Club, Shakhtar
decided to act in the way announced in its letter to
the Player dated 3 rd February 2010, which relevant
part reads as follows:
“ Following to the above mentioned the Club has applied the
fi ne stipulated in clause 7.1 of the contract. The Club will
retain the amount of fi ne from your future salary starting from
January 2010. Below is a breakdown of the amount to be paid
by the Club under the labour contract:
138,103 EUR * 18 month (outstanding salary) + 5389 * 18
month (house rent compensation) – 2.130.228 EUR (salary to
fi fth season/fi ne) = EUR 452.628
So your monthly salary will be reduced to the amount of
Jurisprudence majeure / Leading cases
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