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 22 July 2010, the Player A (hereinafter: the Claimant), born on 9 October 1989,
transferred on loan from the Club of Country B, Club E, to the Club of Country D,
Club C (hereinafter: the Respondent). Within this framework, the Claimant
concluded an employment contract (hereinafter: the contract) with the
Respondent, valid as from the date of signature until 31 December 2011.
2. According to clause 8.1 of the contract, the Claimant was entitled to a monthly
remuneration in the amount of USD 8,000. In addition, the Claimant was entitled
to a monthly housing assistance allowance amounting to USD 300.
3. In addition, clause 9.2 of the contract stipulated the following:
“In case of termination or rescission of the work contract before the end of
validity, payment by the contract party of all amounts due to the athlete will be
made on the day of rescission or no later than the following day. The athlete must
supply the contracting party with his labour card on the day of the rescission for
the require entries.”
4. On 7 April 2011, the Respondent and Club E signed a termination agreement in
order to terminate the loan agreement and the employment agreement between
the Claimant and the Respondent with immediate effect. According to clause 4 of
the termination agreement, the Claimant was entitled to receive “his salaries
regarding to the period from 1 January 2011 to 7 April 2011 according to the
employment contract”.
5. On 24 April 2012, the Claimant lodged a claim before FIFA against the Respondent
for breach of contract without just cause during the protected period. In
particular, the Claimant requested the payment of all the sums he would have
earned until the expiration of the contractual term, as well as compensation for
image and moral damages, in the amount of USD 147,600 plus 5% interest per
year “since the moment the due amount became outstanding”. The total claimed
amount can be detailed as follows:
-USD 96,000, corresponding to the salaries between January 2011 and December
2011;
-USD 3,600, corresponding to the housing allowance between January 2011 and
December 2011;
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Player A, Country B / Club C, Country D
-USD 48,000 for image and moral damages.
6. In addition, the Claimant requested the payment of an undetermined amount for
legal expenses, as well as sporting sanctions to be imposed on the Respondent.
7. According to the Claimant, and following a medical examination that took place
on 19 January 2011, the Respondent communicated him on 1 February 2011 that
he had “serious cardiac problems”, meaning that “it is very dangerous for him to
play football” and that “tomorrow the [Claimant] goes back to Country B”.
8. Consequently, the Claimant considered the contract terminated without just
cause. Thereafter, the Respondent and Club E signed a termination agreement on
7 April 2011 which, according to the Claimant, he never signed.
9. In this context, the Claimant referred to art. 18 par. 4 of the Regulations on the
Status and Transfer of Players and argued that the validity of an employment
contract cannot be made subject to the results of a medical examination.
10. In its reply to the claim, the Respondent stated that it complied with its
contractual obligations until it received the results of the medical tests. In this
regard, the Respondent stated that it “could not risk the [Claimant’s] health and
allow him to play, especially considering the [Respondent’s] great responsibility
for the [Claimant] on loan”.
11. In addition, the Respondent underlined that it had fully remunerated the
Claimant for the period between 1 January 2011 and 7 April 2011. The
Respondent insisted that there was a termination agreement concluded by all the
involved parties upon request of the Claimant, and that the Claimant only
brought a claim before FIFA more than a year after the signature of this
termination agreement. The Respondent stated that even in the consideration
that the contract was unilaterally terminated, there was a just cause in any case,
due to the Claimant’s dangerous cardiac deviations, and that the contract was
concluded within a cooperation framework with Club E.
12. Finally, the Respondent pointed out that the Claimant renewed his contractual
relationship with Club E as from 8 April “2012”, and that consequently he did not
suffer any financial or other losses. According to the Respondent, the Claimant
tacitly accepted the terms of the termination agreement by playing for Club E,
and quoted DRC jurisprudence, according to which “the parties have tacitly
complied with the terms of the private contract and through this action, have
implied that their real intentions were stipulated in this agreement”. The
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Player A, Country B / Club C, Country D
Respondent also rejected the claimed amounts in relation to housing allowances,
since the Claimant was not living in City of Country D.
13. On 23 July 2010, the Claimant and Club E signed an employment contract valid as
from the date of signature until 9 September 2014, according to which the
Claimant is entitled to receive a monthly salary of 7,000. In addition, this contract
included an Addendum on Wage Adjustment, according to which the Claimant is
entitled to receive a monthly salary of 12,000, from 1 February 2012 until 9
September 2014.
14. Finally, and according to the information available on the Transfer Matching
System (TMS), the Claimant’s International Transfer Certificate (ITC) was returned
to the Football Federation of Country B on 8 April 2011.
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 24
April 2012. 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, 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 and 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players, edition 2014, 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 of Country B and a Club of Country D.
3. 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 2010, 2012 and 2014), and considering that the
present matter was submitted to FIFA on 24 April 2012, the 2010 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
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Player A, Country B / Club C, Country D
4. 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.
5. First of all, the Chamber stated that it first had to analyse when the contract was
considered to be terminated and by which party.
6. In this respect, the members of the DRC took note that on 22 July 2010, an
employment contract was concluded between the parties for the period from 22
July 2010 until 31 December 2011, following a transfer on loan from Club E to the
Respondent.
7. Moreover, the members of the DRC understood that the Claimant considered
that the Respondent terminated the employment contract without just cause on
1 February 2011, when the Respondent notified Club E that, due to “serious
cardiac problems”, “tomorrow the [Claimant] goes back to Country B”.
8. On the other hand, the Chamber acknowledged that the Respondent argued that
a termination agreement was signed by the Respondent, Club E and the Claimant
on 7 April 2011 and that, even if the contract was considered to be terminated
unilaterally, it had a just cause for the unilateral termination of the employment
contract due to the Claimant’s alleged cardiac deviations.
9. In this respect, the Chamber turned its attention to the Respondent’s argument
that a termination agreement was signed by the Respondent, Club E and the
Claimant on 7 April 2011. In this regard, the Chamber observed that said
agreement was only signed by the Respondent and Club E.
10. Subsequently, the members of the DRC turned their attention to the submissions
of both parties regarding the medical examination carried out on 19 January
2011, which apparently indicated that the Claimant had “serious cardiac
problems” and that, consequently, he should avoid playing football.
11. Equally, the Chamber took due note of the documentation submitted by the
Claimant from which it can be established that Club E was informed by the
Respondent on 1 February 2011 that, due to the Claimant’s alleged health
problems, he should return to Country B. In this respect, the members of the
Chamber stressed that the aforementioned correspondence and its content were
not disputed by the Respondent.
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Player A, Country B / Club C, Country D
12. In this context, the members of the Chamber considered that the Respondent
terminated the contract on 1 February 2011 when it informed Club E that the
Claimant should return to Country B due to his alleged health problems.
13. Having established that the Respondent terminated the employment contract on
1 February 2011, the Chamber turned its attention to the question as to whether
the contract had been terminated by the Respondent with or without just cause.
14. First and foremost, in the light of the main reason at the basis of the termination
of the contract in the matter at hand, i.e. the player’s medical condition, the
Chamber wished to emphasise that on the basis of the Chamber’s respective
jurisprudence, a club wishing to employ a player has to exercise due diligence
and carry out all relevant medical examination prior to entering into an
employment contract with a player.
15. The Chamber further took into consideration that an injury or health condition
of a player can be no valid reason to cease the payment of a player’s
remuneration and even less so to terminate an employment contract. In this
regard, the Chamber highlighted that it is the club’s responsibility to secure the
continuation of payment of remuneration in such cases, possibly by means of
adequate insurance.
16. In view of the aforementioned, the Chamber stated that the unilateral
termination of the employment contract on 1 February 2011 by the Respondent
constitutes a breach of contract without just cause.
17. 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.
18. First of all, the members of the Chamber concurred that the Respondent must
fulfil 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
termination, i.e. the amount of USD 8,300, consisting of one salary for the month
of January 2011. For the sake of completeness, the Chamber pointed out that the
Respondent stated that it had fully remunerated the Claimant between “1
January 2011 and 7 April 2011”. In this respect, the members of the Chamber
referred to art. 12 par. 3 of the Procedural Rules which establishes the principle
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Player A, Country B / Club C, Country D
of the burden of the proof, and stressed that no evidence was provided by the
Respondent in this respect.
19. Consequently, the members of the Chamber unanimously agreed to award the
Claimant with the payment of USD 8,300 by the Respondent, corresponding to
outstanding remuneration, as established in the contract, plus 5% interest p.a. as
from 1 February 2011, as requested by the Claimant.
20. 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.
21. 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.
22. 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 clause 9.2 of the contract stipulated that
“in case of termination or rescission of the work contract before the end of
validity, payment by the contract party of all amounts due to the athlete will be
made on the day of rescission or no later than the following day”.
23. In view of the foregoing, and in order to calculate 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. In addition, the Chamber
deemed necessary to consider the professional situation of the Claimant after the
early termination occurred.
24. 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
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Player A, Country B / Club C, Country D
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 1
February 2011, the contract would run for another 11 months, in which a total of
eleven instalments were still to be paid. Consequently, taking into account the
financial terms of the contract, particularly that the expressly parties agreed upon
a monthly salary of USD 8,300, 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 91,300 and that such amount shall serve as
the basis for the final determination of the amount of compensation for breach
of contract.
25. 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 remuneration under a new employment
contract(s) shall be taken into account in the calculation of the amount of
compensation for breach of contract.
26. In view of the foregoing, the Chamber took note that, on 8 April 2011, the
Claimant returned to Club E, and that this information is supported by the
information available on the TMS, according to which the ITC of the Claimant
was returned to the Football Federation of Country B on 8 April 2011.
27. Under these circumstances, the members of the Chamber recalled the contract
concluded by Club E that the Claimant signed with said club on 23 July 2010,
which was still valid until 9 September 2014 upon termination of the loan period
with the Respondent, and which entitled the Claimant to a monthly salary in the
amount of 7,000, equivalent to USD 4,000.
28. Therefore, the members of the Chamber concluded that Claimant would have
earned nine instalments of USD 4,000 during the period comprised between April
2011 until 31 December 2011, for a total amount of USD 36,000.
29. Consequently, the Chamber determined that, in the calculation of the
compensation due to the Claimant, the amount of USD 36,000 should be
deducted from the amount of USD 91,300.
30. As a result, the Chamber decided that the Respondent should pay to the Claimant
the amount of USD 55,300, plus 5% interest p.a. as of the date of the claim, i.e.
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Player A, Country B / Club C, Country D
24 April 2012, until the effective date of payment, as compensation for breach of
contract without just cause, which is considered by the Chamber to be a
reasonable and justified amount as compensation.
31. Finally, the Chamber took note that the Claimant requested the payment of USD
48,000 by the Respondent, corresponding to alleged image and moral damages.
32. In this regard, the members of the Chamber observed that there was no
contractual basis for said claim, and that therefore, it should be rejected.
33. 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.
2. The Respondent, Club C, has to pay to the Claimant within 30 days as from the
date of notification of the present decision, outstanding remuneration in the
amount of USD 8,300, plus 5% interest p.a. on said amount as from 1 February
2011 until the date of effective payment.
3. The Respondent has to pay to the Claimant within 30 days as from the date of
notification of the present decision, compensation for breach of contract in the
amount of USD 55,300, plus 5% interest p.a. on said amount as from 24 April
2012 until the date of effective payment.
4. In the event that the amount plus interest due to the Claimant is not paid within
the stated time limit, 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.
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Player A, Country B / Club C, Country D
6. The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances under points 2. and 3. above are 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 (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