Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 February 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Monsen (Norw ay ), member
Joaquim Ev angelis ta (Portugal), member
Taku Nom iy a (Japan), member
Todd Durbin (US A), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 15 January 2015, the Player of Country B, Player A (hereinafter: player or
Claimant), and the Club of Country D, Club C (hereinafter: club or
Respondent), signed an employment contract (hereinafter: contract) valid as of
15 January 2015 until 30 September 2015.
2.
According to the contract, the club undertook to pay the player, inter alia, a
monthly salary of USD 6,000 payable “from day 5 today 10 of the following
month”.
3.
Furthermore, the contract contains the following clause: “The club shall
provide the return for player in season 2015 two tickets Country B-Country DCountry B”.
4.
Moreover, art. 3.5 of the contract reads as follows: “The club has the right to
terminate the contract early if the player does not have good performance or
violates the rules of the Football Federation of Country D, regulations of Club
C, Club C [the club] will pay compensation 01 month salary for player”.
5.
On 28 April 2015, the club terminated the contract with the player in writing,
arguing that he “cannot meet the professional requirements” and that he
“has not usually played in official football games and frequently on the bench
of substitutes”.
6.
On 5 May 2015, the player sent a letter to the club requesting to revoke its
decision to terminate the contract.
7.
On 3 November 2016, the player lodged a claim with FIFA against the club for
breach of contract without just cause and requested payment of the following
monies:
- EUR 2,187.72 corresponding to flight tickets;
- USD 30,000 as compensation for breach of contract.
In addition, the player requested interest of 5% p.a. as from the respective due
dates.
8.
In his arguments, the player held that the club paid all the salaries up to the
termination, but failed to reimburse him for two flight tickets.
9.
Furthermore, the player argued that the club had no just cause to terminate
the contract and claimed compensation for breach of contract in the amount
of USD 30,000 corresponding to the residual value of the contract, i.e. the
salaries as of May 2015 until September 2015.
Player A from Country B / Club C from Country D
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10.
Moreover, the player pointed out that the club had not replied to his letter
dated 5 May 2015.
11.
Despite having been invited to do so, the club has not responded to the
player’s claim.
12.
The player has not signed a new employment contract during the relevant
period of time following the termination of the contract.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 3 November 2016. Consequently, the 2015 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter
at hand (cf. art. 21 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 2016) 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.
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 2 of the Regulations on the Status and Transfer of
Players (edition 2016), and considering that the present claim was lodged on 3
November 2016, the 2016 edition of said regulations (hereinafter: 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 all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
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.
Player A from Country B / Club C from Country D
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5.
First of all, the members of the Chamber acknowledged that, on 15 January
2015, the Claimant and the Respondent had concluded an employment
contract valid as from 15 January 2015 until 30 September 2015.
6.
In continuation, the members of the Chamber noted that the Claimant lodged
a claim against the Respondent maintaining inter alia that the club terminated
the employment contract without just cause on 28 April 2015. Consequently,
the Claimant asks to be awarded inter alia compensation for breach of the
employment contract without just cause.
7.
Subsequently, the DRC took into account that the Respondent failed to
present its response to the claim of the Claimant, in spite of having been
invited to do so. By not presenting its position to the claim, the Chamber was
of the opinion that the Respondent renounced its right of defence and, thus,
accepted the allegations of the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall
take a decision upon the basis of the documentation on file.
9.
First and foremost, the Chamber took into account the Respondent’s notice
dated 28 April 2015, addressed to the Claimant, by means of which the
Respondent terminated the contract due to the Claimant’s alleged failure to
meet the Respondent’s professional requirements. The Chamber further noted
that the Claimant had protested in writing against his dismissal by the
Respondent.
10.
Having established that the Respondent terminated the employment contract
on 28 April 2015, the Chamber turned its attention to the question as to
whether the contract had been terminated by the Respondent with or without
just cause.
11.
In respect of the reason invoked by the Respondent in the relevant notice of
termination, the Chamber wished to emphasise that in accordance with the
Chamber’s longstanding jurisprudence, alleged low performance of a player
cannot be considered a valid reason to unilaterally terminate an employment
contract. Therefore, contractual provisions entitling a club to terminate a
contract for this specific reason shall be disregarded.
12.
In this context, and in the absence of any other reason which could justify the
termination of the contract by the Respondent, the Chamber concluded that
the Respondent had no just cause to unilaterally terminate the contract on 28
Player A from Country B / Club C from Country D
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April 2015 and, therefore, decided that the Respondent is to be held liable for
the early termination of the employment contract without just cause.
13.
In continuation, prior to establishing the consequences of the termination of
the employment 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 when the Respondent
terminated the employment relation.
14.
In this regard, the members of the Chamber took into account that the
Claimant held having received his salaries up to the termination of the
contract on 28 April 2015, but argued that the Respondent failed to reimburse
two flight tickets in the total amount of EUR 2,187.72.
15.
Furthermore, the DRC established that the Claimant, in accordance with the
contract, was entitled to receive two return flight tickets from Country B to
Country D.
16.
Turning its attention to the receipts relating to the flight tickets submitted by
the Claimant, the Chamber noted that for one of the tickets the flight route
was not in accordance with the contractual provision. The DRC concluded that
the claim for reimbursement of said ticket in the amount of EUR 1,037.72 must
therefore be rejected.
17.
In continuation, the members of the Chamber decided that the Claimant is
entitled to receive reimbursement of the amount of EUR 1,150 on the basis of
the employment contract and the receipt provided for the second flight ticket.
18.
Consequently, on account of the above and in accordance with the general
legal principle of pacta sunt servanda, the Chamber decided that the
Respondent is liable to pay to the Claimant the amount of EUR 1,150 in
connection with the remuneration due to the Claimant in accordance with the
employment contract until its early termination.
19.
In addition, taking into consideration the Claimant’s claim, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. on the amount
of EUR 1,150 as of 28 April 2015.
20.
Having established the above, the Chamber turned its attention to the
consequences of the termination of the employment contract by the
Respondent without just cause on 28 April 2015.
Player A from Country B / Club C from Country D
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21.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the Claimant is entitled to receive compensation for breach of
contract from the Respondent.
22.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
so, 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.
13.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. The members of the Chamber recalled that according to art. 3.5 of
the contract, “The club has the right to terminate the contract early if the
player does not have good performance or violates the rules of the Football
Federation of Country D, regulations of Club C, Club C [the club] will pay
compensation 01 month salary for player”. In addition, the Chamber
highlighted that this clause is the only contractual provision potentially
dealing with the amount of compensation in the event of breach of contract
by either of the parties.
14.
In continuation, the members of the Chamber agreed that said compensation
clause is to the benefit of the club only, i.e. it is not reciprocal as it does not
grant the same rights to the player, and that, therefore, said clause cannot be
taken into consideration in the determination of the amount of compensation.
15.
As a consequence, the members of the Chamber determined that 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.
16.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
Player A from Country B / Club C from Country D
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new contract, 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 the new contract, if any, in the
calculation of the amount of compensation.
17.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
as from the date of termination without just cause by the Respondent, i.e. 28
April 2015, until the original date of expiry, i.e. 30 September 2015, and
concluded that the Claimant would have received remuneration in the total
amount of USD 30,000 had the contract been executed until its ordinary expiry
date. Consequently, the Chamber concluded that the amount of USD 30,000
serves as the basis for the final determination of the amount of compensation
for breach of contract in the case at hand.
18.
In continuation, the Chamber verified as to whether the Claimant had signed
an employment contract with another club during the relevant period of time,
by means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
19.
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.
20.
Consequently, on account of all of the above-mentioned considerations, the
Chamber decided that the Respondent must pay the amount of USD 30,000 to
the Claimant as compensation for breach of contract.
21.
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. 3
November 2016, until the date of effective payment.
22.
The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
Player A from Country B / Club C from Country D
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 1,150 plus 5% interest p.a. as from 28 April 2015 until the date
of effective payment.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date
of notification of this decision, compensation for breach of contract in the
amount of USD 30,000 plus 5% interest p.a. as from 3 November 2016 until the
date of effective payment.
4.
In the event that the aforementioned sums are not paid by the Respondent
within the stated time limits, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal
decision.
5.
Any further claim lodged by the Claimant is rejected.
Player A from Country B / Club C from Country D
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6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A from Country B / Club C from Country D
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