Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2013,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Takuya Yamazaki (Japan), member
Theodoros Giannikos (Greece), member
Essah M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the player,
Player G, from country M
as Claimant
against the club,
Club L, from country C
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 12 January 2010, the player G from country M (hereinafter: the Claimant),
and Club L, from country C (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract) valid as from 1 January 2010
until 31 May 2013.
2.
According to the contract, the Claimant was entitled to receive, inter alia, the
following net salaries:
- EUR 15,000, payable in 5 equal monthly installments of EUR 3,000 each,
starting as from 31 January 2010 until 31 May 2010;
- EUR 40,000 for each of the seasons 2010/11, 2011/12, and 2012/13, payable
in 10 equal monthly installments of EUR 4,000 each, starting as from 31
August until 31 May of every season.
3.
On 13 January 2010, the parties signed a supplementary agreement according
to which the Claimant would, inter alia, receive:
- EUR 40,000, payable in 5 equal monthly installments of EUR 8,000 each,
starting as from 31 January 2010 until 31 May 2010;
- EUR 60,000 for each of the seasons 2010/11, 2011/12, and 2012/13, payable
in 10 equal monthly installments of EUR 6,000 each, starting as from 31
August until 31 May for every season;
- EUR 2,750 for accommodation, payable in 5 equal monthly installments of
EUR 550 each, for the period 2009/10, starting as from 31 January 2010 until
31 May 2010; and
- one return air ticket to his country for the season 2009/10.
4.
On 27 July 2010, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, indicating that on 12 July 2010 the
Respondent sent him a letter stating that he was not allowed to train with the
team anymore, because his contract had been terminated.
5.
In this context, the Claimant explained that:
-
in May 2010, the Respondent pressured him to terminate the contract;
on 24 June 2010, he received permission to travel to country O until 5 July
2010 to meet with a country O team;
on 8 July 2010, he returned to the Respondent to start with the team’s preseason, however, he was not allowed to join the team;
On 12 July 2010, he received a letter from the club which states “With this
we inform [the player] that is not allowed to participate the training
program of our team, because his contract with the club has been
Player G, from country M / Club L, from country C
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terminated, because he didn’t participate the training program since 5th
of July as he should without excuse”.
6.
Subsequently, the Claimant sent a letter to the Respondent and the country C
Football Association on 13 July 2010 asking for clarifications, however, both
letters apparently remained unanswered. Therefore, on 16 July 2010, the
Claimant informed the Respondent that he was going to leave country C,
because he was banned from training and since the Respondent was no
longer paying his rent and salaries.
7.
On account of the above, the Claimant requested payment from the
Respondent of the total amount of EUR 320,510, made up of:
- EUR 3,000 corresponding to the salary of May 2010 under the contract;
- EUR 120,000 corresponding to the salaries of August 2010 until May 2013
under the contract;
- EUR 16,000 corresponding to the salaries of April and May 2010 under the
supplementary agreement;
- EUR 180,000 corresponding to the salaries from August 2010 until May 2013
under the supplementary agreement;
- EUR 1,100 corresponding to the rent for May and June 2010; and
- EUR 410 for 2 flight tickets.
8.
In reply to the claim lodged against it, the Respondent stated that the
Claimant violated “specific and essential terms of the employment contract”,
reason why the Respondent proceeded to the termination of the contract. In
particular, the Respondent outlined that the Claimant did not return to
country C “at the beginning of the club’s training”. In this respect, the
Respondent submitted a letter dated 6 July 2010 apparently sent to the
management of the Claimant outlining that the Claimant was not present
during the training sessions of 5 July 2010 and 6 July 2010 (AM). Therefore,
the Respondent was “obliged” to terminate the employment contract.
9.
In addition, the Respondent indicated that the Claimant signed an
employment contract with another club for the 2010/2011 season and that,
therefore, the player has no right to claim any compensation for “loss of
future income”.
10.
Finally, the Respondent admitted to still owe the Claimant the outstanding
salaries of April and May 2010, which it “never denied to pay”.
11.
In his replica, the Claimant maintained his previous position and stated that
he was never informed that he was under any disciplinary procedures and
Player G, from country M / Club L, from country C
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that he was never asked for a statement regarding his absence from the two
training sessions.
12.
In its duplica, the Respondent maintained its previous position.
13.
In reply to FIFA´s request, the Claimant indicated that, on 15 August 2010, he
signed a new contract with the country I Club D, valid for one competitive
season, ending “after the FA cup and the league of season”. According to the
relevant contract, the Claimant was entitled to receive the total amount of
USD 150,000.
14.
On 18 July 2011, the Claimant signed a contract with the country M club V
valid as from 1 August 2011 until 1 January 2014, in accordance with which he
would receive the following remuneration:
- Monthly salary of currency of country M 265,500 from 1 August 2011 until
1 July 2012;
- Monthly salary of currency of country M 307,500 from 1 July 2012 until 1
January 2014.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 27 July 2010. Consequently, the previous edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) are
applicable to the matter at hand (cf. art. 21 of the 2008 and 2012 edition 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 2012), 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 FYR Macedonia and a
Cypriot club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (editions 2009, 2010 and 2012), and considering that the claim was
Player G, from country M / Club L, from country C
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lodged on 27 July 2010, the 2009 edition of the aforementioned regulations
(hereinafter: the 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, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file.
5.
First of all, the members of the Chamber acknowledged that, on 12 January 2010,
the Claimant and the Respondent had concluded an employment contract valid as
from 1 January 2010 until 31 May 2013.
6.
The Chamber further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the total amount of EUR 320,510,
asserting that the Respondent had not fulfilled its contractual obligations towards
him. More specifically, the Claimant indicated that the Respondent had
terminated the employment contract on 12 July 2010 and that, as a consequence,
he had left country C on 16 July 2010, after his requests for clarifications had
remained unanswered.
7.
In continuation, the Chamber observed that the Respondent insisted that it had
terminated the contract on the basis of valid reasons, since the Claimant had
violated “specific and essential terms of the employment contract”. In particular,
the Respondent held that the Claimant had not returned to country C at the
beginning of the Respondent’s training for the season 2010/11 and that he,
consequently, had missed two training sessions.
8.
In this context, the Chamber acknowledged that it had to examine whether the
reasons put forward by the Respondent could justify the termination of the
contract in the present matter.
9.
In this respect, the Chamber was eager to emphasise that only a breach or
misconduct which is of a certain severity justifies the termination of a contract. In
other words, only when there are objective criteria which do not reasonably
permit to expect a continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order for an employer to assure the
employee’s fulfillment of his contractual duties, such measures must be taken
before terminating an employment contract. A premature termination of an
employment contract can always only be an ultima ratio.
Player G, from country M / Club L, from country C
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10.
In view of the above, the Chamber first of all observed that the Respondent never
contested that the Claimant was authorised to travel to country O to meet with a
country O team. Equally, the Chamber observed that there was no evidence
submitted by the Respondent that the player was indeed supposed to return to
country C on the 5th of July 2010. However, regardless of the question whether the
Claimant was supposed to return to country C on 5 July 2010 and to partake in the
two training sessions on 5 and 6 July 2010, the Chamber was of the firm opinion
that the Respondent did, in any case, not have just cause to prematurely terminate
the employment contract with the Claimant, since such breach could not
legitimately be considered as being severe enough to justify the termination of
the contract, and that there would have been more lenient measures to be taken
(e.g., among others, a suspension or a fine) in order to sanction the absence of the
Claimant for only two training sessions.
11.
On account of the above, the Chamber decided that the Respondent had no just
cause to unilaterally terminate the employment relationship between the
Claimant and the Respondent and, therefore, concluded that the Respondent had
terminated the employment contract without just cause on 12 July 2010 and that,
consequently, the Respondent is to be held liable for the early termination of the
employment contact without just cause.
12.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract without
just cause by the Respondent.
13.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract up until the date of termination
of the contract in accordance with the general legal principle of “pacta sunt
servanda”. Consequently, the Chamber decided that the Respondent is liable to
pay to the Claimant the remuneration that was outstanding at the time of the
termination i.e. the amount of EUR 20,305, consisting of one monthly salary of
EUR 3,000 for May 2010 under the contract, two monthly salaries of EUR 8,000
each corresponding to the salaries of April and May 2010 under the
supplementary agreement, two payments regarding the rent of EUR 550 for May
and June 2010 as well as EUR 205 regarding the flight ticket to leave country C.
14.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1
of the Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract in addition to any outstanding salaries on the
basis of the relevant employment contract.
15.
In this context, the Chamber outlined that, in accordance with said provision, the
amount of compensation shall be calculated, in particular and unless otherwise
Player G, from country M / Club L, from country C
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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 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.
16.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a compensation payable
by the contractual parties in the event of breach of contract. In this regard, the
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
17.
Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account the remuneration
due to the Claimant in accordance with the employment contract as well as the
time remaining on the same contract, along with the professional situation of the
Claimant after the early termination occurred. In this respect, the Chamber
pointed out that at the time of the termination of the employment contract on 12
July 2010, the contract and the supplementary agreement would run for another 3
seasons, in which a total of thirty installments were still to be paid. Consequently,
taking into account the financial terms of the contract and the supplementary
agreement, the Chamber concluded that the remaining value of the contract as
from its early termination by the Respondent until the regular expiry of the
contract amounts to EUR 300,000 and that such amount shall serve as the basis for
the final determination of the amount of compensation for breach of contract.
18.
In continuation, the Chamber remarked that following the early termination of
the employment contract at the basis of the present dispute the Claimant had
found new employment with two clubs. Firstly, the Claimant signed an
employment contract with Club D, from country I, valid as from August 2010 until
May 2011 in accordance with which he would be remunerated with the total
amount of USD 150,000, corresponding to EUR 105,000. Secondly, the Claimant
signed an employment contract with a club V, from country M, valid as from 1
August 2011 until 1 January 2014, in accordance with which the Claimant was
entitled to a monthly salary of currency of country M 265,500 (equivalent to EUR
4,260) as from 1 August 2011 until 1 July 2012 and currency of country M 307,500
(equivalent to EUR 4,888) as from 1 July 2012 until 1 January 2014. Consequently,
in accordance with the constant practice of the Dispute Resolution Chamber and
the general obligation of the Claimant to mitigate his damages, such
remuneration under the new employment contract shall be taken into account in
the calculation of the amount of compensation for breach of contract.
Player G, from country M / Club L, from country C
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19.
In view of all of the above, the Chamber decided that the Respondent must pay
the amount of EUR 90,112 to the Claimant as compensation for breach of contract
without just case, which is considered by the Chamber to be a reasonable and
justified amount as compensation.
20.
In conclusion, the DRC decided that the Respondent is liable to pay the total
amount of EUR 110,417 to the Claimant, consisting of the amount of EUR 20,305
corresponding to the Claimant’s outstanding remuneration at the time of the
unilateral termination of the contract without just cause by the Respondent and
the amount of EUR 90,112 corresponding to compensation for breach of contract
without just cause.
21.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player G, is partially accepted.
2.
The Respondent, Club L, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 20,305.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, compensation for breach of contract
amounting to EUR 90,112.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. are not paid by the Respondent within
the stated time limits, interest at the rate of 5% p.a. will fall due as of expiry
of the aforementioned time limits and the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a
formal decision.
5.
Any further claim lodged by the Claimant is rejected.
Player G, from country M / Club L, from country C
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6.
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.
*****
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
Deputy Secretary General
Encl.
CAS directives
Player G, from country M / Club L, from country C
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