Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 February 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
Mr John Bramhall (England), member
Santiago Nebot (Spain), member
on the claim presented by the player,
Player P, from country N
as Claimant
against the club,
Club K, from country T
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 19 January 2009, Player P, from country N (hereinafter: the Claimant), and Club K, from
country T (hereinafter: the Respondent), concluded an employment contract (hereinafter: the
contract), valid for “the 2008-2009 second season, 2009-2010 season and 2010-2011 season”.
2.
The contract specified, inter alia, that the Respondent would provide the Claimant with the
following remuneration:
Season 2008-2009 (second season):
- EUR 25,000 payable upon reception of the ITC;
- EUR 25,000 payable in 5 monthly instalments of EUR 5,000 each, from February until June.
Season 2009-2010:
- EUR 50,000 due on 30 August 2009;
- EUR 50,000 payable in 10 monthly instalments of EUR 5,000 each, from August until May.
Season 2010-2011:
- EUR 50,000 due on 30 August 2010;
- EUR 50,000 payable in 10 monthly instalments of EUR 5,000 each, from August until May.
3.
In addition, the contract provided the following bonuses:
- EUR 10,000 in the event that the Claimant scores at least 10 goals in the country T League;
- an increase of 25% of his annual salary in the event that the Claimant plays in more than 25
matches in the country T League.
4.
On 20 March 2012, the Claimant lodged a complaint before FIFA against the Respondent for
breach of contract, requesting a total amount of EUR 125,000, plus 5% interest p.a., due as of
the due date of each payment, and composed as follows:
- EUR 25,000 as outstanding remuneration for the season 2009-2010;
- EUR 100,000 as compensation corresponding to the remuneration for the season 2010-2011.
5.
In this respect, the Claimant held having honoured his contract until 2 April 2010, on which
date he suffered a severe car accident on his way back from training with the Respondent,
which left him paralysed.
6.
In this regard, the Claimant stated that despite the Respondent’s alleged promise of
respecting the contract, the Respondent terminated the contract on 11 August 2010, making
reference to article 27 of the Regulations on Status and Transfer of Players of the country T
Football Federation. As per the explanations of the Claimant, said article gives the Respondent
the right to terminate the contract whenever “the illness the player suffers from, outside
football activities or the period for relaxing, lasts longer than six months”. In this context, and
according to the Claimant, the Respondent’s termination was unlawful because it omitted to
wait for the compulsory six-month period before terminating the employment contract. In
conclusion, and in consideration of art. 27 of the country T Football Federation Regulations,
the Claimant submitted an alternative request for compensation, corresponding to the
amount of EUR 60,000 corresponding to the amounts due until six months after the
occurrence of the disability.
Player P, from country N / Club K, country T
Page 2 of 9
7.
In its reply, the Respondent objected to the above-mentioned six-month waiting period and
alleged that the car accident suffered by the Claimant was based on his fault and not related
to football activity since the latter ignored “RED WARNING LIGHTS, LANE USE SIGN and
COMPUSULSORY DIRECTION SIGNS”. Hence the Respondent had a just cause to unilaterally
terminate the contract in accordance with art. 27 of the country T Football Federation
Regulations.
8.
In this respect, the Respondent argues that art. 27 of the country T Football Federation
Regulations allows clubs to terminate the relevant employment contract whenever the player
will be unable to provide his services for a six-month period. Since it was evident the Claimant
would not be fit to play for such a period, the Respondent maintains that its termination was
valid.
9.
Regarding the remuneration requested, the Respondent alleged having paid to the Claimant
“in good faith” a total amount of EUR 175,000. In this respect, the Respondent maintains
having paid the Claimant’s entire dues until 2 April 2010 in the amount of EUR 140,000. In
addition, the Respondent states having paid the amount of EUR 25,000 as championship
bonus, which was not agreed in the contract. Furthermore, the Respondent alleges having
provided the Claimant with an insurance “which in turn paid him a total € 50.347.39 – in
addition to all expenses of his medical treatment and rehabilitation”. In order to corroborate
the payment of EUR 175,000 in total, the club provided receipts of payment. As a result, the
Respondent rejects the Claimant’s claim for outstanding salaries as well as for compensation.
In addition, the Respondent concluded by requesting the Claimant to bare legal costs
regarding the present proceedings.
10.
In his final comments, the Claimant maintains that the Respondent had no just cause to
terminate the contract and, in particular, asserts that the country T Football Federation
Regulations and country T national law are not applicable in the matter at hand, insisting that
they are not “in line with the universal principles of employment law”. The Claimant also
reiterates his position that art. 27 of the country T Football Federation Regulations provides
for a waiting period of six months which has not been respected by the Respondent before
terminating the contract. Moreover the Claimant states that the injury was suffered in an
activity that is not prohibited by the contract and insists that, as a general rule, the injury of a
player does not constitute a just cause for a club to terminate the contract.
11.
As for the Respondent’s final comments, it reiterates its position by rejecting all claims of the
Claimant, considering that the termination of the contract was justified and that it had paid
the total amount of EUR 175,000 to the Claimant.
12.
Upon FIFA’s request for information regarding any remuneration or allowance the Claimant
might have received after the termination of the contract, he states that neither the
Respondent nor any insurance company or state authority made any payment in relation with
his injury.
Player P, from country N / Club K, country T
Page 3 of 9
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 case at hand. In this respect, it took note
that the present matter was submitted to FIFA on 20 March 2012. Consequently, 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 par. 2 and par. 3 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 employmentrelated dispute with an international dimension between a country N player and a country T
club.
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 (editions 2012 and 2010), and
considering that the present claim was lodged on 20 March 2012, the 2010 edition of said
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, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging the above-mentioned facts as well as the arguments and the documentation
submitted by the parties.
5.
The members of the Chamber acknowledged that the parties were contractually bound by
means of an employment contract valid as from the second part of the season 2008-2009 until
the end of the season 2010-2011.
6.
Subsequently, the Chamber took into account that, according to the Claimant, the Respondent
had prematurely terminated the contract in writing on 11 August 2010. Equally, the DRC
observed that said fact was confirmed by the Respondent.
7.
In continuation, the Chamber went on to deliberate whether the facts of the case constitute a
just cause for the Respondent to prematurely terminate the employment contract.
8.
In this respect, the Chamber took due note of the Respondent’s argumentation that it had
terminated the contract with just cause on the basis of art. 27 of the country T Football
Federation Regulations. The Chamber remarked that according to the Respondent, the
Claimant was no longer able to provide his services to the club considering his permanent
incapacity since his car accident on 2 April 2010.
Player P, from country N / Club K, country T
Page 4 of 9
9.
On the other hand, the members of the DRC noted that the Claimant, although
acknowledging his permanent incapacity, contested the validity of the above-mentioned
article.
10.
In view of the foregoing, the members of the Chamber recalled the wording of art. 27 of the
country T Football Federation Regulations which, according to the Respondent, allows clubs to
terminate the relevant employment contract whenever the player will be unable to provide his
services for a six-month period.
11.
In this regard, the DRC deemed it appropriate to analyse the question whether such clause
could lawfully be referred to and be considered as valid at all. In that context, the Chamber
was eager to emphasize that, according to its well-established jurisprudence, and as a general
rule, a player’s injury does not constitute a just cause in the sense of art. 14 of the Regulations
for a club to terminate a contract. Moreover, the Chamber, referring to the contents of art. 18
par. 4 of the Regulations, emphasized that once the parties concluded an employment
contract, they had the obligation to implement its terms and a club could not unilaterally
question the validity of the contract during its course based on the physical state of the player.
The Chamber also deemed it important to point out that in any event, the contract does not
make reference to any regulations being applicable, meaning that such was never included to
the contractual agreement between the parties.
12.
In the light of such potestative character of the pertinent contractual clause, the members of
the DRC were of the unanimous opinion that art. 27 of the country T Football Federation
Regulations invoked by the Respondent in order to put an end to the contract was clearly
invalid and that, consequently, the respective argumentation of the Respondent could not be
upheld by the Chamber.
13.
In continuation, the members of the Chamber highlighted that although permanent
incapacity in itself cannot be considered as a valid reason to unilaterally terminate an
employment contract, such specific circumstance will however have an effect on the amount
of compensation, in the light of the bilateral character of an employment contract and the
circumstance that in the event of permanent incapacity to play, a player is no longer in the
position to render his services to the club.
14.
On account of all of the above, the members of the Chamber unanimously reached the
conclusion that the Respondent terminated the contract on 11 August 2010 without just
cause.
15.
Prior to establishing the consequences of the breach of contract without just cause by the
Respondent 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 Respondent.
16.
Indeed, in his statement of claim, the Claimant alleges that his remuneration relating to
January until May 2010 was to be considered outstanding. The Respondent, for its part, stated
Player P, from country N / Club K, country T
Page 5 of 9
that no amounts are outstanding and that it paid to the Claimant a total amount of EUR
175,000 from the beginning of the contractual relationship until its termination.
17.
In this respect, the Chamber recalled the basic principle of burden of proof, as stipulated in
art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis
of an alleged fact shall carry the respective burden of proof.
18.
The DRC noted that the Respondent did substantiate its defence, as it presented receipts of
payment in respect of payments made to the Claimant which amount in total to EUR 175,000.
In this context, the DRC referred to content of the contract as well as all other documents at
his disposal. Therefore, the Chamber concluded that the player had been entitled to fixed
remuneration only and up until the end of the season 2009-2010, i.e. the total amount of EUR
150,000.
19.
In view of the above, the DRC concluded that the Respondent has provided evidence of its
defence and that, therefore, it could be established that the Respondent paid the Claimant all
amounts which had fallen due at the time of the termination of the contract, as agreed upon
between the parties in the contract. As a consequence, the Respondent is not to be held liable
to pay any outstanding remuneration to the Claimant. Therefore, the DRC partially accepted
the Claimant’s claim.
20.
Having established the above, the Chamber turned its attention to the question of the
consequences of the unilateral termination of the contract by the Respondent without just
cause on 11 August 2010.
21.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive compensation from the Respondent for the termination of the
contract without just cause on the basis of the contract.
22.
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 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.
23.
In application of the relevant provision, the Chamber determined that since no compensation
clause is contained in the contract, the amount of compensation payable by the Respondent
to the Claimant 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 nonexhaustive 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. In this regard, the Dispute Resolution Chamber
Player P, from country N / Club K, country T
Page 6 of 9
emphasised beforehand that each request for compensation for contractual breach has to be
assessed by the Chamber on a case-by-case basis taking into account all specific circumstances
of the respective matter.
24.
In order to estimate the amount of compensation due to the Claimant in the present case, the
members of the Chamber first turned their attention to the remuneration and other benefits
due to the Claimant under the existing contract and/or any other earnings made within the
residual contractual period, 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 any subsequent earnings, if any, in the calculation of the amount of compensation.
25.
In accordance with the contract signed by the Claimant and the Respondent, which was to run
for another season, i.e. until May 2011, after the breach of contract occurred, the Claimant
was to receive remuneration amounting to EUR 100,000. Consequently, the Chamber
concluded that the amount of EUR 100,000 serves as the basis for the final determination of
the amount of compensation for breach of contract.
26.
The Chamber then took due note of the employment situation of the Claimant after the
termination of the contract at the basis of the case at stake. Bearing in mind art. 17 par. 1 of
the Regulations and in accordance with the constant practice of the Dispute Resolution
Chamber as well as the general obligation of the player to mitigate his damages, such
subsequent remuneration under a new employment contract(s) shall be taken into account in
the calculation of the amount of compensation for breach of contract. In this regard, the
members of the Chamber noted that according to the circumstances, the Claimant did not sign
any new employment contract as a professional football player after the termination of the
contract as he has not been able to play any professional football since then.
27.
The Chamber further took into account that the Claimant apparently did not receive any
remuneration or allowance by the Respondent or any insurance or state authority in relation
with his injury, in spite of the Respondent’s allegation according to which the Claimant had
received an insurance allowance amounting to EUR 50,347.39. In this respect, pursuant to art.
12 par. 3 of the Procedural Rules, the Chamber did not take into account such payment in the
calculation of the compensation since the Respondent did not substantiate its statement in
relation thereto.
28.
Likewise, as to the alleged payment of the championship bonus of EUR 25,000, the DRC
acknowledged from the Respondent assertions that such payment apparently referred to the
previous season, i.e. 2009-2010, and therefore could count as mitigation for compensation.
29.
As stated above, the circumstance of permanent incapacity to play professional football is
taken into consideration in the determination of the amount of compensation. Indeed, an
employment contract is essentially based on a mutual exchange of obligations between the
parties involved, i.e. the employer (in football, the club) undertakes the obligation to
remunerate the employee (in football, the player) in exchange of his services and the
Player P, from country N / Club K, country T
Page 7 of 9
employee undertakes the obligation to render his services to the employer in exchange of the
employer’s remuneration, for the duration agreed upon between the parties. In the event of
permanent incapacity to play, the player is obviously prevented from fulfilling his main
obligations arising from the employment contract, i.e. to render his services to the club. A
permanent incapacity of a player thus creates a particular situation, in that the other party, a
club, can no longer be expected to continue to fulfil its contractual obligations.
30.
Consequently, the Chamber deemed that effects inherent to permanent incapacity to play
professional football have to be taken into account in the determination of the amount of
compensation.
31.
In the present matter, in view of all of the above as well as the particular issue at stake, the
members of the Chamber deemed that compensation within the range of 70% to 80% of the
final amount of compensation, including any possible mitigation of damages by the player,
was considered reasonable and proportionate as compensation for breach of contract in the
specific case at hand.
32.
Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided to partially accept the Claimant’s claim and decided
that the Respondent must pay the amount of EUR 80,000 as compensation for the unjustified
breach of the contract by the Respondent in the specific case at hand.
33.
In addition, taking into account the Claimant’s request, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as
of the date on which the claim was lodged, i.e. 20 March 2012, until the date of effective
payment.
34.
The DRC further decided that the Respondent’s claim for legal costs is rejected, in accordance
with ar. 18 par. 4 of the Procedural Rules and the respective longstanding jurisprudence of the
Dispute Resolution Chamber.
35.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
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 in the amount of EUR 80,000 plus 5%
interest p.a. on said amount as from 20 March 2012 until the date of effective payment.
Player P, from country N / Club K, country T
Page 8 of 9
3.
In the event that the abovementioned amount due to the Claimant is not paid by the
Respondent within the stated time limit, 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.
*****
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 P, from country N / Club K, country T
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