Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 January 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands), member
Tom is lav Kas alo (Croatia), member
Pav el Piv ov arov (Russia), member
Daan de Jong (The Netherlands), member
on the claim presented by the player,
Play er A, Country B,
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 11 January 2016, the player of Country B, Player A (hereinafter: the Claimant or the
player) and the club of Country D, Club C (hereinafter: the Respondent or the club)
signed an employment contract valid from 23 January 2016 until 31 December 2017
(hereinafter: the contract).
2.
According to the contract, the Claimant was entitled to receive the following amounts:
An annual income for the “2016 season” of 12,600,000 in the currency of Country
D;
o
An advanced payment of 1,800,000 in the currency of Country D upon
signing the contract;
First payment of 900,000 in the currency of Country D ‘within
Jan 15, 2016’;
Second payment of 900,000 in the currency of Country D ‘within
April 5, 2016’;
o
A monthly salary of 900,000 in the currency of Country D for 2016;
An annual income for the “2017 season” of 14,400,000 in the currency of Country
D;
o
An advanced payment of 2,520,000 in the currency of Country D upon
signing the contract for 2017;
First payment of 1,260,000 in the currency of Country D ‘within
Jan 15, 2017’;
Second payment of 1,260,000 in the currency of Country D
‘within April 5, 2017’;
o
A monthly salary of 990,000 in the currency of Country D for 2016;
Three Business (round trip tickets) to the Claimant per year;
A house and car allowance of 50,000 in the currency of Country D per month;
A bonus of 1,800,000 in the currency of Country D if the club is promoted to the
Country D’s highest football league, provided that the player participates in 60%
of all the games.
3.
Article 8.3 of the contract provides that ‘(t)he Party is in breach or in violation of any
Clause under this Agreement, Club C shall have the right to terminate the Agreement
without any compensation and claim for any damages from the Player’.
4.
Article 8.4 of the contract provides that ‘Club C reserve [sic] the right to terminate the
player it [sic] he engage in illegal Activities or violate Criminal Laws of Country D’.
Article 9 of the contract stipulates that ‘(t)his agreement shall be construed and
interpreted in accordance with and governed by the laws of Country D the parties
hereto agree to submit to the jurisdiction of the competent court in Country D’.
Player A, Country B / Club C, Country D
Page 2 of 12
5.
On 8 February 2017 the Claimant lodged a claim before FIFA against the club alleging
a unilateral termination of the contract without just cause by the club and requested
the following:
24,308,085 in the currency of Country D corresponding to the residual amount of
the contract as from 1 March 2016 until 31 December 2017 minus his remuneration
with his new club, Club E (Country F), from 1 July 2016 to 31 December 2016, plus
interest of 5%, as follows:
o
10 monthly instalments (from March 2016 until December 2016) of
900,000 in the currency of Country D each;
o
A second instalment of the advanced payment that was scheduled to be
paid on 5 April 2016 in the amount of 900,000 in the currency of Country
D;
o
An advanced payment of 2,520,000 in the currency of Country D upon
signing the contract for 2017;
o
12 monthly instalments (from January 2017 until December 2017) of
990,000 in the currency of Country D each;
o
1,100,000 in the currency of Country D corresponding to the player’s
house and car allowance (from March 2016 until December 2017);
o
Three round trip business class tickets per year for the player and his
family, of which the value, as estimated by the player, amounts to
1,011,151 in the currency of Country D (corresponding to 28,848 USD);
o
Minus 2,103,066 in the currency of Country D (corresponding to 60,000
USD) earned with Club E(cf. point I.25 below);
3,600,000 in the currency of Country D as specificity of sport corresponding to the
months of March – June 2016, i.e. the period in which the player had no income,
plus 5% interests;
Sanctions imposed on the club for the breach of contract inside the protected
period in accordance with art. 17 (4) of the FIFA Regulations;
The attorney’s fees at the rate of 20% on the value of the conviction.
6.
The Claimant highlights that on 19 February 2016 he was involved in a traffic accident,
in which a motorcyclist died, while driving to the club for training sessions, causing the
Police of Country D to open investigations against him.
7.
On 1 March 2016 the club’s Vice President summoned the Claimant to a meeting where
he was presented with a “Termination Letter” to sign. The letter included the
following: ‘The reason of your termination is violation of section 8.4 according to the
incident on February 19, 2016 (…). The case office charged you with criminal offense
and had allowed bali [sic] to you on February 29, 2016. Please also note that your salary
and all other benefits will end on the termination date including your (…) plane
Player A, Country B / Club C, Country D
Page 3 of 12
tickets.’ Although the Claimant refused to sign the Termination Letter, the Respondent
considered the contract with the Claimant as terminated.
8.
On 3 March 2016 the Department of Justice of Country D temporarily imprisoned the
Claimant until 14 March 2016.
9.
On 16 March 2016 the Claimant and the family of the deceased motorcyclist concluded
a “memorandum of agreement regarding compensation for damages to reduce the
unfavourable effects of a criminal case” before the “Police Station of the District of
Country D”, by means of which the player agreed to compensate the family with
620,000 in the currency of Country D for “damages and fines”. The Claimant and the
family further agreed not to press civil or criminal charges.
10.
On 29 March 2016 the Court of Country D closed the criminal case against the Claimant
and fined him for a total amount of 10,000 in the currency of Country D.
11.
On 30 March 2016 the Claimant’s agent sent the Respondent an email asking whether
the club still upheld the Claimant’s dismissal now that the Court of Country D closed
the case. However, the Respondent never responded to this email.
12.
The Claimant further states that on 24 February 2016 the Respondent tried to contract
another player of Country B (Player G) who plays on the same position as the Claimant,
even though the Respondent had already completed the full quota of five foreign
players in the team. After Player G’s refusal to join the Respondent, the Respondent
approached a third player of Country B (Player H), offering him flight tickets and the
possibility to play for the Respondent. The Claimant is thus of the opinion that the
Respondent used the traffic accident as an excuse to terminate the employment
contract.
13.
In its reply, the Respondent held that at the time of the accident the Claimant had not
yet obtained a driver’s license pursuant to law of Country D and that, for this reason,
the Respondent had refused to provide the Claimant with a car. Nonetheless, after
deciding to buy a car himself, the Claimant ‘committed a negligence at the wheel’ on
19 February 2016 while driving to a training session.
14.
The Respondent felt that ‘the question of the future of the player [had] to be asked’
and that it would ‘be difficult to keep the player in the squad according to the emotion
that might raise such a case in the spirit of the supporters. And under these
circumstances it’s not unfair nor illegal trying to think about an alternative and contact
other players’.
15.
Furthermore, the Respondent found the behaviour of the Claimant during the enquiry
highly questionable, given that, at first, he ‘refused to recognize any penal
Player A, Country B / Club C, Country D
Page 4 of 12
responsibility even though it was clearly incurred’. Moreover, the Respondent
highlighted that the Claimant finally pleaded a partial confession on 29 February 2016
and that he was sentenced to an imprisonment of two years and a 10.000 in the
currency of Country D fine, but that the court suspended the imprisonment for one
year because the father and the mother of the deceased had been compensated and
that the Claimant needed to travel.
16.
The Respondent does not agree with the content of the Claimant’s agent email of 30
March 2016, in which he claimed to be innocent. For the Respondent, the Claimant was
clearly guilty of a criminal offence.
17.
As regards the fact that the employment contract was terminated on 1 March 2016,
while the court case was closed on 29 March 2016 (28 days later), the Respondent
responded that ‘it was not possible to keep the player. It was also not possible to wait
for the final sentence that was supposed to be pronounced much later and in any event
after deadline for the players’ registration and the transfer period (7 March)’.
18.
Even though the Claimant was contracted on 11 January 2016, by the time the
Respondent unilaterally terminated the contract on 1 March 2016 it had not yet
registered the Claimant. According to the Respondent, clubs of Country D register their
foreign players at the last moment before the transfer deadline, in order to avoid
registering a player who is suddenly injured or a player who is not eligible to play for
any other reason.
19.
Furthermore, basing itself on the wording of Article 9 of the employment contract (cf.
point I.3 above), the Respondent primarily concludes that the FIFA DRC is not
competent to judge the Claimant’s claim, since the parties agreed to submit themselves
to the jurisdiction of the competent court in Country D.
20.
In the alternative event the DRC was to consider itself competent, the Respondent
highlights the validity of Article 8.4 of the employment contract (cf. point I.3 above).
According to the Respondent, the inclusion of such article in the contract is perfectly in
line with the principle of contractual freedom. Although the Claimant seems to
consider that bad luck caused the accident, the Respondent deems that it was his own
negligence. In that light, the Respondent reiterated that the Claimant was sentenced
to a two-year imprisonment. Article 8.4 needs to be considered valid in order to prevent
an open door of total permissiveness and an encouragement for players not to control
their way of life.
21.
The club claims that the Chamber should reject the Claimant’s claim in its entirety and
that the Claimant covers all of the club’s legal expenses, i.e. 10.000 USD.
Player A, Country B / Club C, Country D
Page 5 of 12
22.
In its replica, the Claimant holds that the employment contract did not include a clear
jurisdiction clause of a specific court in Country D. Furthermore, Article 9 of the contract
does not give exclusive jurisdiction to a Labour Court in Country D. The fact that the
Claimant has never waived his right to lodge a claim in front of FIFA is demonstrated
by the claim at hand.
23.
According to the Claimant, by stating that ‘it was not possible to keep the player. It
was also not possible to wait for the final sentence that was supposed to be
pronounced much later and in any event after deadline for the players’ registration
and the transfer period’, the Respondent confirmed that it unilaterally terminated the
employment contract with the Claimant on 1 March 2016 in order to hire another
player before the end of the transfer window on 7 March 2017, and that this was done
prior to the final sentence of the Criminal Court of Country D. Similarly, in its response
the Respondent also confirmed that two months after signing the employment
contract it had never registered the Claimant.
24.
In its duplica, the Respondent pointed out that although the Claimant considered
Article 9 of the contract too vague to be considered a jurisdiction clause, it considers
that the competence of FIFA is clearly excluded under Article 9, as this corresponded to
the will of the parties when agreeing upon such a clause. In any case, the words
‘competent court in Country D’ cover any kind of court, including labour courts. The
fact that the Claimant argued that the contract should have included “labour courts”
demonstrates that he himself understands that ‘court in Country D’ includes labour
courts.
25.
Lastly, the Respondent repeated its argument that in Country D it is normal to wait
until the last moment to register foreign players, subject to quota. The quota is limited
and a player can get seriously injured at any time. The clubs often keep a possibility to
recruit another player in case of a last minute problem. The clubs also have the right to
conclude a mutual termination in case of poor performance.
26.
On 1 July 2016 the Claimant signed a new employment contract with the club of
Country F, Club L as from the date of signature until 31 December 2016. The Claimant
would be remunerated for a total of 60,000 USD, paid in six instalments of 10,000 USD
per month.
27.
According to the Claimant and the information contained in TMS, since 1 January 2017
the Claimant is unemployed.
Player A, Country B / Club C, Country D
Page 6 of 12
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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 8 February 2017.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. article 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 2016) the Dispute
Resolution Chamber shall adjudicate on employment-related disputes between a club
and a player that have an international dimension.
3.
Within this context, the Chamber understood that, in principle, it would be competent
to decide on the present litigation which involves a player of Country B and a club of
Country D regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the competence
of FIFA’s deciding bodies on the grounds that the employment contract concluded with
the Claimant established the ‘competent court in Country D’ as the competent body to
deal with the case.
5.
On the other hand, the Chamber noted that the Claimant insisted on the competence
of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent, as
the jurisdiction clause included in the contract was not clear and specific enough.
6.
In relation to the above, the Chamber deemed it vital to outline that one of the basic
conditions that needs to be met in order to establish that another organ than the DRC
is competent to settle an employment-related dispute between a club and a player of
an international dimension is that the jurisdiction of the relevant national arbitration
tribunal or national court derives from a clear reference in the employment contract.
7.
Therefore, while analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse
whether the employment contract at the basis of the present dispute contained a clear
and specific jurisdiction clause.
8.
In this respect, the Chamber recalled that Article 9 of the employment contract
stipulates that: ‘(t)his agreement shall be construed and interpreted in accordance with
and governed by the laws of Country D the parties hereto agree to submit to the
jurisdiction of the competent court in Country D’.
Player A, Country B / Club C, Country D
Page 7 of 12
9.
Having examined the relevant provision, the Chamber came to the unanimous
conclusion that Article 9 of the employment contract does not constitute a clear
jurisdiction clause in favour of one specific court in Country D, since it is drafted in a
generic manner. Consequently, the Chamber understood that the parties actually never
clearly and undisputedly agreed upon a specific jurisdiction.
10.
Thus, the Chamber established that the Respondent’s objection towards the
competence of FIFA to deal with the present matter has to be rejected, and that the
Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter as to
the substance and that the claim of the Claimant is admissible.
11.
Next, 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 2016) and considering
that the present claim was lodged on 8 February 2017, the 2016 edition of said
regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
12.
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.
13.
In this respect, the Chamber recalled that, the Claimant and the Respondent signed an
employment contract valid as from 23 January 2016 until 31 December 2017. The
employment contract was subsequently terminated by the Respondent on 1 March
2016, after the Claimant was involved in a deadly traffic accident, as per the
documentary evidence on file.
14.
In continuation, the Chamber took note of the Claimant’s arguments, who considered
that being involved in a traffic accident is not a just cause for the club to terminate his
contract. The Chamber also noted that the Claimant argued that, since the criminal
proceedings were closed on 29 March 2016 by the Court of Country D, the employment
contract could in theory once again be executed. Thus, the Claimant deems that the
Respondent did not have a just cause to terminate the contract and that it did so before
the criminal decision had become final and binding, violating the principle of the
presumption of innocence.
Player A, Country B / Club C, Country D
Page 8 of 12
15.
Similarly, the Chamber referred to the Respondent’s point of view, who held that at
the time of the accident, it had not yet provided the Claimant with a car, because he
had not yet obtained a valid driver’s license of Country D. The Chamber further
understood that, according to the Respondent, it was not possible to register the
Claimant while he was awaiting trial in front of the Criminal Court of Country D, since
the deadline to register players would pass before the closing of the criminal
proceedings. Thus, the Respondent deems to have terminated the employment
contract with the Claimant on 1 March 2016 with just cause and in line with Articles 8.3
and 8.4 of the contract.
16.
In this context, the Chamber unanimously agreed that the primary issue at stake is
determining whether the Respondent indeed had a just cause to terminate the contract
with the Claimant on 1 March 2016. In particular, the Chamber acknowledged the very
exceptional circumstances of the matter at hand and concluded that, in order to
determine whether the Respondent had or not a just cause to terminate the contract,
it would have to assess whether the aforementioned exceptional circumstances in fact
rendered the continuation of the employment relationship between the Claimant and
the Respondent impossible. In this respect, the Chamber deemed it essential to make a
brief chronological recollection of the facts that preceded the termination of the
contract by the Respondent, based on the documentary evidence on file.
17.
In this regard, the DRC noted that the player signed his employment contract on 11
January 2016. On 19 February 2016 he caused the traffic accident, which led to the
death of a motorcyclist. As a result of the incident, the Justice Institutions of Country D
launched criminal proceedings against him. On 1 March 2016, the club terminated the
contract with the player, prior to even registering him with the Football Association of
Country D. On 29 March 2016, the Court of Country D closed the criminal proceedings
against the player, declaring him guilty of a criminal offense. The player had to pay a
fine and was sentenced to two years in prison. The prison sentence, however, was
suspended by one year because the player had compensated the family of the
deceased.
18.
Furthermore, the Chamber deemed it essential to point out that it remained
uncontested by the player that, at the time he concluded a contract with the club, he
did not possess a valid driving licence in Country D and that, due to this particular
circumstance, the club refused to provide him with a vehicle, as alleged by the club in
its reply to the player’s claim. Notwithstanding the foregoing, the player still acquired
a car and made use of it, eventually causing a traffic accident that resulted in the death
of a motorcyclist.
19.
Before entering the analysis of the justice of the contract termination – or the lack of
it – by the Respondent and for the sake of completeness of its analyses, the Chamber
Player A, Country B / Club C, Country D
Page 9 of 12
deemed important to emphasise that, even though the contract appears to have never
been registered with the Football Association of Country D, this fact has absolutely no
influence on the validity of the contract, duly signed between the Claimant and the
Respondent. This is in line with the Chamber’s longstanding jurisprudence, according
to which the validity of an employment contract cannot be made conditional upon the
execution of (administrative) formalities, such as, but not limited to, the registration
procedure in connection with the international transfer of a player, which are of the
sole responsibility of a club and on which a player has no influence.
20.
Having said that, the Chamber – prior to an eventual analysis of the validity of Articles
8.3 and 8.4 of the contract – noted from the aforementioned sequence of facts
displayed in points II.17 and II.18 above – which either are supported by documentary
evidence or remained uncontested by the counterparty – that the Claimant
uncontestedly and deliberately disregarded the club’s decision not to provide him with
a vehicle due to the fact that he did not possess a valid permission to drive in Country
D and proceeded to acquire a car on his own account, getting involved in a deadly
traffic accident and consequently in criminal proceedings. In view of the foregoing
circumstances, the Chamber concluded that this conduct of the Claimant naturally
affected the trust of the Respondent in him, in particular with regard to his carelessness
with following the instructions issued by his employer and even law of Country D,
causing an irreparable harm to the relationship between the parties and the
impossibility of the continuation of the employment contract. Consequently, the
Chamber deemed it impossible for the Respondent to maintain an employment
relationship with a player who so blatantly disobeyed the Respondent’s orders and who
did not act in good faith from the very beginning of their contractual relationship.
21.
The Chamber also deemed it important to specifically address the Claimant’s argument
that the contract could not have been terminated by the Respondent with just cause
on 1 March 2016, since a final and binding conviction was only issued on 29 March 2016
and the principle of the presumption of innocence would have been disregarded, and
since his imprisonment was even suspended due the conclusion of an agreement with
the family of the deceased. In this light, the Chamber first wished to underline that the
DRC is not in a position to question the validity nor the proportionality of a judgment
by a national criminal court. Furthermore, the Chamber wished to draw the parties
attention to the fact that the just cause for the termination is, in the present case, given
by the irreparable damage to the relationship of trust between the Claimant and the
Respondent, due to the Claimant’s behaviour of disregard of the club’s instructions and
of local law from the start of the contract, which rendered its continuation in good
faith impossible.
22.
Therefore, the Chamber concluded that, regardless of the validity or not of clauses 8.3
and 8.4 of the employment contract, the conduct of the Claimant irreparably damaged
Player A, Country B / Club C, Country D
Page 10 of 12
the relationship of trust between the employer and the employee and rendered the
continuation of their employment contract impossible. Therefore, the Chamber
reached the conclusion that the Respondent had a just cause to terminate the
employment contract with the Claimant on 1 March 2016.
23.
In view of the above, the Chamber concluded that the Claimant’s claim must be rejected
in full.
*****
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is rejected.
*****
Note relating to the m otiv ated 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 (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
Player A, Country B / Club C, Country D
Page 11 of 12
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
Page 12 of 12