Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), member
on the matter between the player,
Player A, country B
as Claimant
and 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 January 2011, player A from country B (hereinafter: the Claimant), and club
C from country D (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract), valid as from the date of signature until 30
June 2011.
2. The contract established the following remuneration:
Schedule I.
a) A gross monthly salary of $5000; a sum of $750 of the salary shall be
withheld monthly to meet personal income tax liability where the Player is
a Player from outside jurisdiction (a foreign player)
(…)
j) Any other conditions:
The club shall reimburse the player up to a maximum of 1500 for his return
air ticket for season 2011 (based on actual claiming/show proof receipt)
3. Moreover, clause j) of the Schedule of the contract contained the following
condition:
j) (…) Payment of player’s gross monthly salary will only commence upon his
clearance of the medical screening and passing of the required League X
fitness test.
4. Furthermore, clause 26 of the contract established the following:
Any dispute and/or difference that may arise between the Player
notwithstanding his membership with the Club, if any, and the Club (…), such
dispute/difference or decision as the case may be shall forthwith be referred
in writing to the CEO, League X/Chief, Competitions, who shall in his absolute
discretion either refer it to The Players Status Committee, the Football
Association of country D or refer it to an Arbitrator of the CEO, League
X/Chief, Competitions, who shall in his absolute discretion, either refer it to
The Players Status Committee, Football Association of country D or refer it to
a Board of three (3) arbitrators appointed by the CEO, League X/Chief
Competitions, in his absolute discretion, and such decision of the Players
Status Committee or the Arbitrator or the Board of Arbitrators as the case
may be shall be final and conclusive and binding on the parties.
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Player A, country B / Club C, country D
5. Additionally, the Claimant and the Respondent signed an addendum to the
contract, dated 1 January 2011, which stipulated the following:
Clause 2:
Notwithstanding anything contained in the Players’ Contract, the Player
agrees that the Club shall have the right to terminate the contract without
compensation if any of the following conditions are not met and as stated
below:
1. Approval of the Football Association of country D for the Player to play for
the Club in the League X Tournament being granted.
2. The Player taking and passing the mandatory Football Association of
country D/League X medical screening.
3. The Player taking and passing the mandatory Football Association of
country D/League X Test before the Player’s registration deadline.
6. On 11 March 2013, the Claimant lodged a claim before FIFA against the
Respondent for breach of contract without just cause, claiming an aggregate
amount of USD 33,600, plus interest as of 17 March 2011, detailed as follows:
-USD 15,000 corresponding to the salaries payable during the months of
January, February and March 2011;
-USD 15,000 corresponding to the salaries that the player would have earned
from April 2011 until June 2011 if the contract would have been fulfilled until
its original termination date;
-USD 3,600 corresponding to the return flight tickets to country B.
7. According to the Claimant, he was diagnosed with “some type of health
problem”. In this respect, he submitted medical correspondence from the
Hospital in country D, dated 16 February 2011, which indicates that he had a
heart murmur as well as that a cardiologist determined that he had to avoid high
intensity training.
8. According to the Claimant, however, this “would not prevent him from playing
professional football”. In this respect, the Claimant submitted medical
correspondence from a doctor from country D dated 19 June 2012, indicating
that the Claimant’s cardiac condition is “fit to start with progressive physical
training until reaching high performance”.
9. Subsequently, on 13 March 2011, the Respondent’s coach informed the
Claimant’s agent via email that the contract was not valid because the Claimant
did not pass the medical screening.
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Player A, country B / Club C, country D
10. On 17 March 2011, the Claimant returned to country B, according to him, due to
the termination on that date of the contract without just cause, and to the
expiration of his visa, which was allegedly valid until 18 March 2011.
11. In this regard, the Claimant argued in his claim that the clauses conditioning the
validity of the contract to the player’s medical condition are invalid and
contradict art. 18 par. 4 of the Regulations on the Status and Transfer of Players.
12. In its reply, the Respondent contested FIFA’s competence to decide the present
matter by stating that clause 26 of the contract granted jurisdiction to the CEO of
League X / Chief, Competitions. In addition, the Respondent claimed that the
claim was time-barred, since it was lodged more than two years after the
termination of the contract and that the Claimant never contacted the
Respondent to make any claim for compensation during that time.
13. Although invited to provide documentary evidence to prove that the CEO of
League X / Chief, Competitions would be competent to decide on the present
matter, the Respondent failed to do so.
14. As to the substance of the case, the Respondent considered that the Claimant’s
inability to pass the medical screening would have been enough to entitle the
Respondent to terminate the contract.
15. In this regard, the Respondent highlighted that the Football Association of
country D informed it on 10 March 2011 that it will not allow the registration of
the Claimant to play for the Respondent in the 2011 season following the results
of the medical report. In addition, the Respondent considered that, regardless of
this and before it could formally meet the Claimant to discuss over the decision of
the Football Association of country D, the Claimant, “vanished and could not be
found or contacted, thus clearly evidencing his intention not to perform the
Player Contract on his part”. Thus, in the opinion of the Respondent, it was
assumed that the contract was “repudiated and terminated by the player’s
conduct”.
16. In his replica, and regarding the competence, the Claimant considered that the
panel of 3 arbitrators to be proposed by the CEO of League X / Chief,
Competitions does not comply with the principle of equal representation of
players and clubs and that the players are not properly represented.
17. As to the substance of the case, the Claimant considered that the Regulations on
the Status and Transfer of Players state that the validity of a contract may not be
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Player A, country B / Club C, country D
made subject to a successful medical examination. The Claimant also declared
that he did not “disappeared” in order to not perform his duties, but that the
situation was in fact the opposite as the Respondent was refusing to pay for his
salary. The Claimant also stated that, due to the Respondent’s denial to renovate
his working permit, he was facing the risk of being arrested for illegally staying in
country D, a fact that forced him to immediately return to country B.
18. The Respondent submitted its final comments and confirmed its previous
position. In relation to the competence, the Respondent declared that the
Claimant should not be prevented from filing a complaint with FIFA, but that
before doing so, he is obliged to first seek to have his complaint heard and
resolved in accordance with clause 26 of the contract, and that allowing the
Claimant to disregard this clause “would indeed set an undesirable precedent for
the administration of professional football in country D.”
19. Moreover, the Respondent argued that the Claimant’s working permit was not
renovated because he failed to pass the mandatory fitness tests as set by the
Football Association of country D, and that the visa is issued by the Ministry of
Manpower and not by the Respondent.
20. On 2 December 2014, the Claimant stated that he did not sign a new
employment contract with any other club until the original termination date of
the contract, and that he was unemployed at the date of this statement.
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, it took note that the present matter was submitted to FIFA on 11
March 2013. Consequently, the 2012 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 2012 and 2014 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 2014) the Dispute Resolution Chamber shall adjudicate on
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Player A, country B / Club C, country D
employment-related disputes between a player and a club that have an
international dimension.
3. As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation which involves an player from
country B and a club from 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 basis of clause 26 of the contract
alleging that the competent body to deal with any dispute deriving from the
relevant employment contract is the CEO, League X/Chief, Competitions.
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.
6. Taking into account all the above, the Chamber emphasized that in accordance
with art. 22 lit. b) of the 2014 edition of the Regulations on the Status and
Transfer of Players it is competent to deal with a matter such as the one at hand,
unless an independent arbitration tribunal, guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs, has been
established at national level within the framework of the association and/or a
collective bargaining agreement. With regard to the standards to be imposed on
an independent arbitration tribunal guaranteeing fair proceedings, the Chamber
referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the
members of the Chamber referred to the principles contained in the FIFA
National Dispute Resolution Chamber (NDRC) Standard Regulations, which came
into force on 1 January 2008.
7. In relation to the above, the Chamber also 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.
8. 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 jurisdiction clause.
9. In this respect, the Chamber recalled that clause 26 of the contract stipulated the
following:
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Player A, country B / Club C, country D
“Any dispute and/or difference that may arise between the Player
notwithstanding his membership with the Club, if any, and the Club (…), such
dispute/difference or decision as the case may be shall forthwith be referred in
writing to the CEO, League X/Chief, Competitions, who shall in his absolute
discretion either refer it to The Players Status Committee, the Football
Association of country D or refer it to an Arbitrator of the CEO, League X/Chief,
Competitions, who shall in his absolute discretion, either refer it to The Players
Status Committee, Football Association of country D or refer it to a Board of
three (3) arbitrators appointed by the CEO, League X/Chief Competitions, in his
absolute discretion, and such decision of the Players Status Committee or the
Arbitrator or the Board of Arbitrators as the case may be shall be final and
conclusive and binding on the parties”.
10. Having examined the relevant provision, the Chamber came to the unanimous
conclusion that clause 26 of the contract does not constitute a clear jurisdiction
clause in favour of one specific court of arbitration tribunal in country D, since it
only appears to allow a discretionary power to the CEO, League X/Chief,
Competitions, to refer the dispute to different organs belonging either to the
Football Association of country D or to the League X.
11. On account of all the above, 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.
12. The competence of the Chamber having been established, 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, it confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2012 and 2014), and considering that the present
matter was submitted to FIFA on 11 March 2013, the 2012 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
13. Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the
matter. However, the Chamber emphasised that in the following considerations it
will refer only to the facts, arguments and documentary evidence which it
considered for the assessment of the matter at hand.
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Player A, country B / Club C, country D
14. The Chamber then reverted to the argument of the Respondent, according to
whom the present matter is time-barred, since the claim was lodged more than
two years after the termination of the contract. In this regard, the members of
the Chamber referred to art. 25 par. 5 of the Regulations, according to which,
inter alia, the Dispute Resolution Chamber shall not hear any case subject to said
Regulations if more than two years have elapsed since the event giving rise to the
dispute. In view of this, the Chamber stated that it first had to analyse when the
contract was considered to be terminated and by which party.
15. In view of the foregoing, the members of the DRC took note that on 1 January
2011, an employment contract was concluded between the parties for the period
from 1 January 2011 until 30 June 2011.
16. In this respect, the members of the DRC took note that the Claimant considered
that the Respondent had terminated the employment contract without just cause
on 17 March 2011 when the Claimant had to return to his country urgently.
17. On the other hand, the Chamber acknowledged that the Respondent claimed
that it would have had a just cause for the unilateral termination of the
employment contract as the Claimant had not passed the medical test.
Furthermore, the Chamber noted that the Respondent argued that the player
had disappeared before it had decided on whether to terminate the contract or
not.
18. In this respect, the members of the DRC turned their attention to the submissions
of both parties regarding the medical examination carried out between 14 and
16 February 2011, resulting in a medical report dated 16 February 2011, which
indicated that the Claimant had a “heart murmur” and that, consequently, he
should avoid high intensity training. Furthermore, the Chamber observed that
the Respondent indicated that a second medical report was drawn up which
declared the Claimant “unfit for competitive soccer”.
19. Equally, the Chamber took due note of the documentation submitted by the
Claimant from which it can be established that his agent was informed by the
head coach of the Respondent via email on 13 March 2011 that due to the
Claimant’s failure to pass the medical examination, the contract is not valid. In
this respect, the members of the Chamber stressed that the aforementioned
email and its content were not disputed by the Respondent.
20. In this context, taking into account the chronology of events, the members of the
Chamber considered that the Respondent had terminated the contract on 13
March 2011.
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Player A, country B / Club C, country D
21. Having established the foregoing and considering that the Claimant had lodged
his claim in front of FIFA on 11 March 2013, the members of the Chamber
concluded that no more than two years had elapsed since the event giving rise to
the dispute, i.e. the termination of the contract by the Respondent on 13 March
2011. However, the Chamber found that it cannot enter into any claim for
salaries that fell due prior to 11 March 2011.
22. After having established that the Respondent had terminated the contract on the
basis of the outcome of the medical examination carried out between 14 and 16
February 2011, which declared the player “unfit for professional soccer”, the
Chamber referred to art. 18 par. 4 of the Regulations which establishes that “the
validity of a contract may not be made subject to a positive medical examination
and/or the granting of a work permit”.
23. The Chamber recalled the undisputed sequence of the facts in the present
matter: on 1 January 2011, the parties concluded an employment contract, and
the medical examination was carried out between 14 and 16 February 2011.
24. The members of the Chamber stated that it was uncontested that the medical
examination was carried out after the parties had signed the relevant
employment contract.
25. The DRC then recalled the content of the email dated 13 March 2011, sent by the
head coach of the Respondent to the agent of the Claimant, according to which
the Respondent considered that, “as stated clearly in the contract”, the contract
was not valid since the Claimant did not pass the medical examination, in clear
contradiction to the aforementioned art. 18 par. 4 of the Regulations.
26. In this context, the members stated that the contents of art. 18 par. 4 of the
Regulations was of mandatory nature and could not be contractually amended or
circumvented. The Chamber therefore stated that the reason of the Respondent
to consider the contract invalid had no legal grounds.
27. In view of the aforementioned, the Chamber unanimously agreed that the
Respondent terminated the contract without just cause on 13 March 2011 and
that, consequently, the Respondent is to be held liable for the early termination
of the employment contract without just cause.
28. 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.
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Player A, country B / Club C, country D
29. First of all, and as related in points II. 14 and II. 21, the Chamber recalled that the
salaries that fell due prior to 11 March 2011 should be considered as time-barred.
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.
30. In this context, 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.
31. 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.
32. 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
13 March 2011, the contract would run for another 4 months, in which a total of
four instalments were still to be paid. Consequently, taking into account the
financial terms of the contract, particularly that the expressly parties agreed upon
a gross monthly salary of $5,000, a sum of which $750 shall be deducted to meet
personal income tax liability for foreign players, i.e. a net monthly salary of
$4,250, 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 USD 17,000 and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
33. 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
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Player A, country B / Club C, country D
practice of the Dispute Resolution Chamber as well as the general obligation of
the player to mitigate his damages, such 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 the Claimant had not signed any new employment contract within the
period of time between the termination of the contract and its original date of
expiry and, thus, had not been able to mitigate damages. In this context, the
Chamber found it reasonable that the Claimant had not been able to find new
employment within the relevant period of 4 months only.
34. The Chamber then turned its attention to the Claimant’s claim for reimbursement
of flight tickets in the amount of USD 3,600. In this respect, the Chamber took
note that, in accordance with clause j) of the Schedule of the contract, “the club
shall reimburse the player up to a maximum of 1500 for his return air ticket for
season 2011 (based on actual claiming/show proof receipt)”. The Chamber further
noted that the Claimant had provided sufficient documentation in support of his
claim for reimbursement of the flight tickets.
35. Consequently, the Chamber held that the Respondent shall reimburse the cost of
said tickets to the Claimant. However, considering the maximum amount
specified in the contract, the Chamber decided that the Respondent has to
reimburse the amount of 1,500 to the Claimant.
36. In view of all of the above, the Chamber decided that the Respondent must pay
the amounts of USD 17,000 and 1,500 to the Claimant as compensation for
breach of contract without just cause, which is considered by the Chamber to be
a reasonable and justified amount as compensation
37. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is partially accepted, insofar as it is
admissible.
2. The Respondent, Club C, 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
amounts of USD 17,000 and 1,500.
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Player A, country B / Club C, country D
3. In the event that the aforementioned sums are not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of the date of expiry of the
stipulated 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 under point 2. is to be made and to
notify the Dispute Resolution Chamber of every payment received.
6. According to art. 61 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
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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Player A, country B / Club C, country D