Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 January 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 Augustus 2013, the futsal player from country B, Player A (hereinafter: the
player or Claimant) and the futsal club from country D, Club C (hereinafter: the
club or Respondent) concluded an employment contract valid as from 1 August
2013 until 1 May 2014 (hereinafter: the contract).
2.
According to article 7 of the contract, the player was entitled to receive, inter alia,
a monthly salary of EUR 2,500 in the period between 1 August 2013 and 1 May
2014.
3.
Article 1 of the contract provides inter alia for the following: ‘1. Subject of a
contract [….] Footballer also avoids everything that may harm the interests of the
Football Club, his personal interests and the performance of his professional
duties’.
4.
Further, article 3 of the contract stipulates: ‘3. Rights and duties of the club [….]
3.2 The Football Club duties: [….] 3.2.5 Provides befitting medical maintenance
and restoration treatments (massage, sauna, swimming pool, etc.); 3.2.6 Incurs
other expenses of players and of the Football Club, which are derived from the
goals of their business.’.
5.
Article 6 of the contract provides for the following: ‘6. Termination of the
Agreement
6.1 The Agreement shall terminate on the day of expiry. Early termination shall be
made on the basis provided by the cases specified in this contract. The final
payment is done on the day of termination of the Agreement. In case of early
termination of the Agreement, the Parties agree to meet deadlines mutual
notification by the law this agreement.
6.2 The contract may be terminated early in the following cases: 6.2.1 at the
initiative of the Football Club, Footballer is notified 10 days prior to termination
of the contract: [….] - In the case of lowering of sportsmanship’.
6.
According to the player, the club ‘cessed the contract after only three months
since it’s beginning, meaning, in November of 2013’. According to the player, the
club dismissed him due to an injury, which has to be considered as a termination
of his contract contrary to article 6 par. 1 of the contract, as well as contrary to
article 16 and 17 of the Regulations on the Status and Transfer of Players.
7.
In addition, the player states that ‘given this untreated lesion’, he had problems
finding a new club, causing him moral damages in the amount of EUR 20,000.
Player A, country B / Club C, country D
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8.
On 15 May 2014, the player asked the club to pay him the amount of EUR 17,500
as salaries, the amount of EUR 7,500 as medical and pharmaceutical expenses and
the amount of EUR 10,000 as moral damages.
9.
On 23 December 2014, the player lodged a claim before FIFA against the club,
claiming payment of the total amount of EUR 38,688.43, specified as follows:
EUR 17,500 as his monthly salaries as from November 2013;
EUR 1,188.43, as costs of medical treatment;
EUR 20,000 as ‘moral damages’.
10.
On 12 February 2015, the club replied to the claim of the player, by stating that
on 4 October 2013, it terminated the contract of the player in accordance with
article 6.2 and 6.2.1 of the contract. The club based this termination on ‘the
lowering of sportsmanship and that Player A proved wrong player skill’.
11.
In addition, the club states that the player did not prove that he had not received
his salary for ‘the months in question’ and that the medical condition of the
player was not sufficient to fulfil his obligations as a player. In this respect, the
club states that the player got injured shortly after arriving at the club and that
he received appropriate medical treatment from the club. Further, the club argues
that its medical staff concluded that the player arrived with a not fully healed
injury and that he did not inform the club about said injury.
12.
The club holds that these circumstances are a violation of article 1 of the contract
and refers to a declaration of the player’s former club, which confirmed that it
terminated its contract with the player due to his ‘constant health problems’.
13.
Furthermore, the club holds that the player refused to sign the notification
document dated 4 October 2013, but that this cannot be considered as a failure
from the club to make the notification.
14.
As to the amounts claimed by the player, the club states that (a) the player did
not provide evidence for his claim of EUR 20,000 as moral damages and (b) that
the medical expenses of EUR 1,188.43 are ‘baseless’, because these expenses only
occurred after the player left country D. The club concludes that it had just cause
to terminate the contract and asks for the claim of the player to be rejected.
15.
Finally, the player informed FIFA that after the termination of the contract, he
remained unemployed until 1 May 2014.
II.
Considerations of the Dispute Resolution Chamber
Player A, country B / Club C, country D
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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 23 December 2014. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2014;
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 2015) 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 futsal player from country B and a futsal club
from country D.
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 2 of the Regulations on the Status and Transfer of Players
(edition 2015), and considering that the present claim was lodged on 23
December 2014, the 2014 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 Chamber 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.
First of all, the members of the Chamber acknowledged that the parties were
contractually bound by means of an employment contract valid as from 1 August
2013 until 1 May 2014.
6.
In this respect, the player maintained that the club unilaterally terminated the
contract ‘at the beginning of November 2013’ without just cause and therefore,
request the total amount of EUR 17,500, corresponding to seven monthly salaries
of EUR 2,500 each for the period of November 2013 until May 2014. Furthermore,
the player requested that the club be ordered to pay him moral damages in the
amount of EUR 20,000 and medical and pharmaceutical expenses in the amount
of EUR 1,188.43.
Player A, country B / Club C, country D
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7.
The Chamber noted that the club, on the other hand, rejected the claim put
forward by the player. The club holds in this respect that on 4 October 2013, it
terminated the contract with player on the basis of his weak performance, which
was – according to the club – a valid reason in line with article 6.2 and 6.2.1. of
the contract. Furthermore, the club holds that the player’s claim for moral
damages is groundless and that it is not obliged to reimburse the medical
expenses of the player.
8.
In this framework, the members of the Chamber highlighted that the underlying
issue in this dispute, considering the diverging position of the parties, was to
determine as to whether the club had terminated the contract with or without
just cause on 4 October 2013 and subsequently, to determine the consequences of
the early termination of the contractual relationship.
9.
First and foremost, in the light of the main reason at the basis of the termination
of the contract in the matter at hand, i.e. the player’s alleged poor performance,
the Chamber wished to emphasise that the alleged poor performance of a player,
is a purely unilateral and subjective evaluation by the club. The Chamber
stressedemphasised that poor or unsatisfactory performance cannot, by any
means, be considered as a valid reason to terminate the contract of a player, as it
is the result of a purely subjective perception, not measurable in objective criteria.
Thus, it cannot be considered as a just cause for the premature termination of an
employment contract, not even in the case it is contractually agreed.
10.
As regards the club’s allegations that the player arrived at the club with a not fully
healed injury and the fact that he did not disclose his medical condition to the
club prior to entering into the contract, the Chamber stressed that the
responsibility to conduct the necessary medical examinations prior to the signing
of the employment contract is incumbent on the club and that therefore, the
argument of the club could not be allowed.
11.
On account of all of the above, the members of the Chamber decided that the
club terminated the contract on 4 October 2013 without just cause.
12.
In continuation, prior to establishing the consequences of the breach of contract
without just cause by the player in accordance with art. 17 par. 1 of the
Regulations, the Chamber held that it had to address the issue of any unpaid
remuneration at the moment the contract was terminated by the club.
13.
In his statement of claim, the player alleges that the club did not pay him the total
amount of EUR 17,500 and requested in his default letter and his claim for the
payment of these ‘unpaid salaries’. On the other hand, the members of the
Player A, country B / Club C, country D
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Chamber noted that it remained undisputed that the club paid the player’s
salaries for August and September 2013. Further, the player alleges that the
amount of EUR 17,500 is related to the period as from November 2013.
14.
On account of the aforementioned, and bearing in mind, as stated above, that the
contract was terminated by the club on 4 October 2013, the Chamber established
that on the date of termination of the contract, no salary payments were
outstanding.
15.
With respect to the claim for reimbursement of medical costs, the Chamber
recalled that the player requested that the club be ordered to reimburse the
medical expenses he alleges having incurred in country B, in the amount of EUR
1,188.43. The player presented several receipts of medical treatments in respect to
this part of his claim.
16.
In this regard, the Chamber noted that the medical expenses only seem to have
occurred after the termination of the contract and that these costs occurred in
country B. In this respect, the Chamber took into account that the contract does
not include any clause, on the basis of which the club could be held liable for the
payment of the player’s medical costs incurred outside of the territory of country
D and after the termination of the contract.
17.
Further, the Chamber recalled that according to the legal principle of the burden
of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a
right on the basis of an alleged fact shall carry the burden of proof. In this
respect, the Chamber noted that the player did not submit evidence, on the basis
of which it could be established that the club committed itself to paying costs
incurred for the medical treatment of the player in country B.
18.
The members of the Chamber established that as a result of these circumstances,
the club cannot be held liable for costs incurred for such treatment and decided
to reject the player’s claim pertaining to the reimbursement of the medical costs.
19.
Consequently, the members of the Chamber determined that, until the date of
termination of the contract, the club paid all the amounts the player was entitled
to, and thus concluded that no amounts remained outstanding on the
termination date.
20.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1
of the Regulations, the player is entitled to receive from the club compensation
for breach of contract in addition to any outstanding salaries on the basis of the
relevant employment contract.
Player A, country B / Club C, country D
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21.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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 player 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.
22.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained 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.
23.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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.
24.
Bearing in mind the foregoing as well as the claim of the player and the
statement of the club that it terminated the contract on 4 October 2013, the
Chamber proceeded with the calculation of the monies payable to the player
under the terms of the contract 1 May 2014, taking into account that it remained
undisputed that the player received his monthly remuneration for August and
September 2013. Consequently, the Chamber concluded that the amount of EUR
17,500 (i.e. remuneration as from October 2013 until and including April 2014),
serves as the basis for the determination of the amount of compensation for
breach of contract.
25.
In continuation, the Chamber verified as to whether the player 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
Player A, country B / Club C, country D
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of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
26.
However, the Chamber noted that the player did not find new employment with
another club during the relevant period of time and established that as a result
thereof, no amounts shall be deducted from the amount of compensation for
breach of contract as claimed by the player.
27.
As a result, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
players’ claim and that the club must pay the amount of EUR 17,500 as
compensation for breach of contract in the case at hand.
28.
Furthermore, as regards the player’s claim pertaining to moral damages in the
amount of EUR 20,000, the Chamber reiterated the legal principle of the burden
of proof and noted that the player did not submit any evidence of having
suffered the moral damages he claimed. In addition, the members of the Chamber
noted that the claimed amount is not specified by the player. As a result thereof,
the Chamber agreed that such claim is to be rejected due to a lack of legal basis.
29.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant compensation for breach of
contract in the amount of EUR 17,500, within 30 days as from the date of
notification of this decision.
3.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. is not paid by the 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.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent 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.
Player A, country B / Club C, country D
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*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives). The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Encl.: CAS directives
Player A, country B / Club C, country D
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