Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2014,
in the following composition:
Geoff Thompson (England), Chairman
Todd Durbin (USA), member
Mohamed Al Saikhan (Saudi Arabia), member
Joaquim Evangelista (Portugal), member
Leonardo Grosso (Italy), member
on the claim presented by the player,
Player D, from country F
as Claimant
against the club,
Club G, from country E
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 19 July 2008, Player D, from country F (hereinafter: the player or Claimant),
and Club G, from country E (hereinafter: the club or Respondent), concluded
their first employment contract. On 15 May 2010, the parties concluded a
second employment (hereinafter: the contract) valid for 4 seasons starting in
the 2009-2010 season and ending after the 2012-2013 season.
2.
In accordance with art. 3 of the contract, the Claimant was entitled to receive a
total amount of USD 691,000, distributed along the 4 seasons as follows:
- Season 2009/2010: USD 1,000.
- Season 2010/2011: USD 210,000 (divided in 11 instalments; one instalment
of USD 105,000 to be paid on 1 August 2010 and 10 further instalments of
USD 10,500, the first one payable on 1 September 2010 and the last one
payable on 1 June 2011).
- Season 2011/2012: USD 230,000 (divided in 11 instalments; one instalment
of USD 115,000 to be paid on 1 August 2011 and 10 further instalment of
USD 11,500, the first one payable on 1 September 2011 and the last one
payable on 1 June 2012).
- Season 2012/2013: USD 250,000 (divided in 11 instalments; one instalment
of USD 125,000 to be paid on 1 August 2012 and 10 further instalments of
USD 12,500, the first one payable on 1 September 2012 and the last one
payable on 1 June 2013).
3.
Art. 10 of the contract stipulates: “The club has the right to inform the player
in writing to terminate the contract between them at the end of the season
during its validity within fifteen days after last national official match for the
club. In this case the player does not deserve any compensation for the rest of
the period of the contract the player will receive his financial dues up to the
end of the contract.”
4.
On 26 September 2011, the Claimant lodged a claim against the Respondent in
front of FIFA, indicating that the Respondent sent him a termination letter on
12 July 2011 making use of art. 10 of the contract. In this context, the Claimant
provided the relevant letter sent by Respondent by means of which it informed
the Claimant that: “A l’intention de l’équipe d’entrainement du Club T de finir
votre contract, le conseil general du club a décidé de vous informer que votre
contrat résiliera fin de cette saison 2010-2011”. The Claimant argued that, as a
consequence, he was left without any sort of compensation and argued that
this type of unilateral termination clauses violate the contractual stability
Player D, from country F / Club G, from country E
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protected by the FIFA Regulations on the Status and Transfer of Players.
Therefore, the Claimant argued that the relevant clause should be declared
null and void and insisted that the Respondent should pay him the salary he
would have received if the contract would not have been terminated.
5.
On account of the above, the Claimant claimed the payment of: a) USD
480,000 corresponding to the salaries that he would have received in the event
the contract had not been terminated, b) USD 300,000 as compensation for the
damage caused to the player’s career, and c) USD 20,000 for the legal
expenses. Furthermore, the Claimant requested that in the event his claim is
accepted, the Respondent should make the payment within 30 days, otherwise
a 5% interest rate should be imposed on the total amount due.
6.
In its reply, the Respondent claimed that the termination of the contract was
justified since the Claimant had, without the authorization of the Respondent,
travelled abroad on 13 occasions between 16 July 2008 and 30 December 2010
and, consequently, he missed several matches either because he was not in
country E or because he did not have enough time to train and prepare for the
matches. In this respect, the Respondent enclosed a record of the “General
Administration for Passports, Migration and Nationality” which indicated the
various dates on which the Claimant allegedly left the country. Equally, the
Respondent submitted a table of matches regarding the seasons 2008/2009,
2009/2010 and 2010/2011 which included the matches during which, according
to the Respondent, the Claimant was absent.
7.
Furthermore, the Respondent held that the Claimant had acknowledged his
misbehaviour in two letters and enclosed an undated letter in which the
Claimant stated that he “accept any money punishments imposed against me
if I travel without permission from the club (…)”, and another undated letter
in which the Claimant promised to be back from Christmas on 2 January 2009,
otherwise a penalty of USD 1,000 would apply for every day of absence.
8.
Additionally, the Respondent claimed that besides the existence of a
justification for the termination of the contract, it held a right to terminate
the contract with the Claimant in accordance with art. 10 of the contract.
9.
Finally, the Respondent stressed that it always complied with its financial
obligations. Despite the foregoing and “just because we were only five days
late in delivering the player’s contract down payment for the season 2010/2011
for bank procedure reasons, the player presented a request expressing his wish
to terminate the contract.” In this context, the Respondent provided a letter
signed by the Claimant dated 1 June 2010, in which the latter terminated his
contract, since he allegedly did not receive two payments in relation to the
renewal of his contract. The Respondent stressed that it made the relevant
Player D, from country F / Club G, from country E
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payments to the Claimant on 2 June 2010 and that the Claimant promised he
would return to the club before 5 July 2010, however, he only showed up on
12 August 2010.
10.
In conclusion, the Respondent stated that it “has practiced its legal right in
terminating the contract” and added that “the act of termination was applied
amicably (…) in accordance with the contracting terms.”
11.
On 8 December 2011, the Claimant reiterated that the contract was terminated
by the Respondent without just cause and denied that there was an
agreement on such termination. The Claimant argued that he had travelled
abroad with the consent of the Respondent as he had to treat an injury, and
that the latter imposed a penalty on him due to one of his travels.
12.
In reply to the latest comments of the Claimant, the Respondent stressed that
the Claimant travelled abroad with a document issued by the country F
Embassy in country E, and, thus, without the Respondent’s consent. The
Respondent also dismissed the need of the Claimant to leave country E due to
a medical treatment and it considered that the imposition of a fine after the
travel cannot prove that the Respondent knew that the Claimant was leaving
the country.
13.
Upon request, the Claimant informed FIFA that after July 2011, he only signed
one employment contract valid as from 25 April 2012 until 30 August 2012
with Club H, from country V, for a monthly remuneration of USD 7,000, and a
“contract fee” of USD 45,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the case at
hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 26 September 2011. Consequently, the 2008 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to
the matter at hand (cf. art. 21 of the 2008 and 2012 editions 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
Player D, from country F / Club G, from country E
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with the matter at stake, which concerns an employment-related dispute with
an international dimension between a country F player and a country E club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players 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
2010 and 2012), and considering that the claim was lodged on 26 September
2011, the 2010 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. 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, on 15 May 2010,
the Claimant and the Respondent had concluded an employment contract
valid as from the 2009/2010 season until the 2012/2013 season.
6.
The Chamber further observed that the Respondent unilaterally terminated
the contract on 12 July 2011 and noted that the Respondent held that it had a
justification for the termination of the contract, since the Claimant had left the
country on various occasions without the consent of the Respondent. As a
result, the Claimant had missed several matches and training sessions. What is
more, the Respondent held that, in any case, art. 10 of the contract provided
the Respondent with the right to terminate the contract after the end of each
season. The Chamber equally noted that the Claimant, on the other hand,
denied that the Respondent had a just cause to terminate the contract, in
particular arguing that he was authorized to travel abroad and that art. 10 of
the contract should be declared null and void.
7.
Having established the aforementioned, the Chamber observed that the
fundamental issue in the present dispute, considering the claim of the
Claimant and the allegations of the Respondent, is to determine whether the
Respondent had indeed just cause to terminate the contract on 12 July 2011, as
alleged by the Respondent.
8.
In this respect, the Chamber first of all analysed the allegations of the
Respondent in relation to the Claimant’s alleged unauthorized absences. From
the documentation on file, the Chamber acknowledged that the Claimant had
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been absent, be it authorized or not, on various dates between July 2008 and
December 2010. However, the Chamber was of the firm opinion that it did not
have to address the issue whether the Claimant had been authorized or not,
due to the fact that the Claimant’s last absence occurred in December 2010,
whereas the Respondent terminated the contract only in July 2011. Hence, the
Chamber considered it evident that the termination of the contract did not
correspond in time with the alleged unauthorized absences of the Claimant
and, therefore, it considered that the absences had not been the basis on
which the Respondent had terminated the contract. The foregoing conclusion
is also supported by the actual termination notice of 12 July 2011, which did
not mention anything in relation to the Claimant’s alleged unauthorized
absences. What is more, the Chamber noted that the various alleged
unauthorized absences seem to have either been accepted over the years and
were already acknowledged, as can be sustained from the two undated letters
provided by the Respondent.
9.
In relation to the above, the Chamber was also 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 ensure 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 only ever be an ultima ratio
measure.
10.
On account of the above, the Chamber held that the alleged unauthorized
absences of the Claimant could not be considered a just cause to terminate the
contract in the present matter. As a result, the Chamber went on to examine
the second allegation of the Respondent, which consisted of its argument that,
on the basis of art. 10 of the contract, it had the unilateral right to terminate
the contract after the end of each season.
11.
In this context, the Chamber recalled that art. 10 of the contract stipulates that
the Respondent “has the right to inform the player in writing to terminate the
contract between them at the end of the season during its validity within
fifteen days after last national official match for the club. In this case the
player does not deserve any compensation for the rest of the period of the
contract the player will receive his financial dues up to the end of the
contract.”
12.
In this regard, the Chamber emphasized that art. 10 of the contract is
unilateral and to the benefit of the Respondent only; the decision to terminate
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the contract is left fully to the discretion of the club. In the light of such
potestative character of the pertinent contractual clause, the members of the
Chamber agreed that art. 10 of the contract is not acceptable.
13.
Therefore, the members of the Chamber concurred that art. 10 of the contract
does not constitute a reason that can be validly invoked nor a legal basis to
unilaterally terminate the contract. Consequently, the Chamber rejected the
Respondent’s argument in this respect and, as a consequence, decided that the
Respondent had terminated the contract without just cause on 12 July 2011.
14.
Thus, the Chamber established that the Respondent had terminated the
employment contract without just cause on 12 July 2011 and that,
consequently, the Respondent is to be held liable for the early termination of
the employment contact.
15.
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.
16.
In this context, 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. The Chamber outlined that,
in accordance with said provision, 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.
17.
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.
18.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment
contract and concluded that the Claimant would have received a total
remuneration of USD 480,000 had the contract been executed until its expiry
date.
Player D, from country F / Club G, from country E
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19.
In continuation, the Chamber remarked that the Claimant had found new
employment with the Club H, from country V, as from 25 April 2012 until 30
August 2012, establishing a monthly salary of USD 7,000 and a sign-on fee of
USD 45,000. Hence, in total, the Claimant was to receive the amount of USD
73,000 during the period of time he was employed by said Thai club.
20.
Consequently, in accordance with the constant practice of the Dispute
Resolution Chamber and the general obligation of the Claimant to mitigate his
damages, the remuneration under the new employment contract shall be
taken into account in the calculation of the amount of compensation for
breach of contract.
21.
As a result, on account of all of the above-mentioned considerations, the
Chamber decided that the Respondent must pay the amount of USD 407,000
to the Claimant as compensation for breach of contract, which is considered by
the Chamber to be a reasonable and justified amount as compensation for
breach of contract in the present matter.
22.
Furthermore, and in relation to the Claimant’s request for the amount of USD
300,000 as damages, which was not specified by the Claimant, the Chamber
agreed that such claim is to be rejected due to a lack of legal basis.
23.
Finally, the DRC decided to reject the Claimant’s claim pertaining to legal costs
in accordance with art. 18 par. 4 of the Procedural Rules.
24.
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 D, is partially accepted.
2.
The Respondent, Club G, has to pay to the Claimant compensation for breach
of contract in the amount of USD 407,000, within 30 days as from the date of
notification of this decision.
3.
In the event that the above-mentioned amount 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
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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:
Jérôme Valcke
Secretary General
Encl. CAS directives
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