Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 17 March 2015,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C, country D,
as Respondent
regarding an employment-related dispute arisen
between the parties
I.
Facts of the case
1.
On 30 July 2013, the player from country B, Player A (hereinafter: the Claimant)
and the club from country D, Club C (hereinafter: the Respondent) signed an
employment contract (hereinafter: the contract) valid as from 1 August 2013 until
31 May 2014.
2.
According to the contract, the Claimant was entitled to receive a monthly salary of
USD 5’000, payable before the 10th day of each month.
3.
Furthermore the contract stipulates that “for breach of contract the club would
have to inform the players a month earlier, both sides should agree to terminate
the contract by mutual agreement in a friendly way”; in addition “In any of the
following circumstances, both parties can terminate the contract: […] 4. Party A
has been cancelled the qualification for registration and competition Football
Association of country D”.
4.
On 11 February 2014, the Respondent terminated the contract with the Claimant
in writing and with immediate effect, alleging that “[…] on 11 February, 2014
Club C declared its First Division Team has been dismissed due to the suspension
order by country D’s Football Association. Player will have their contract
terminated with immediate effect and compensated by a notice period of ONEmonth or an equivalent amount of basic wages in lieu of notice”.
5.
On 11 June 2014, the Claimant lodged a claim against the Respondent before FIFA
for breach of contract, requesting the payment of compensation in the total
amount of USD 16’251,65 with interest of 5% per year as from each due date,
broken down as follow:
a. USD 1’251,65 as salary for the period from 22 to 28 February 2014, due on
10 March 2014;
Player A, country B / Club C, country D
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b. USD 5’000 salary of March 2014 due on 10 April 2014;
c. USD 5’000 salary of April 2014 due on 10 May 2014;
d. USD 5’000 salary of May 2014 due on 10 June 2014;
e. Sporting sanctions against the Respondent, legal expenses and procedural
costs.
6.
According to the Claimant, the Respondent terminated the contract due to its
suspension by the country D’s Football Association, which is not a valid ground for
the termination of the contract due to the fact that the Claimant has no influence
on the status of the Respondent with the Federation.
7.
Furthermore, he states that, on 28 March 2014, following the termination, the
Respondent only paid him the amount of 29,063, corresponding to USD 3,748.35,
as per the Claimant, as remuneration for the period of 1 to 21 February 2014.
8.
In its reply, the Respondent asserts that the basis of the termination of the
Claimant’s contract was actually the fact that the Claimant failed to disclose his
conviction of match fixing in country B in 2010, which is an essential condition of
the contract. According to the Respondent, the Claimant confirmed orally his
conviction. In support of its allegation, the Respondent provided FIFA with several
articles of a newspaper from country D as well as an article from a website from
country D, which states that the Claimant was sentenced in 2010 to 8 months of
incarceration for match fixing. Furthermore, the Respondent states that the
Claimant has been arrested on 5 January 2014 for alleged match fixing and on 3
July 2014, he was charged with match-fixing by Commission E.
9.
In addition, the Respondent holds that the Claimant refused to sign a termination
letter on 21 January 2014.
Player A, country B / Club C, country D
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10.
For all these reasons, the Respondent deems having had a just cause to terminate
the contract with the Claimant and respected its contractual obligations by paying
on 28 March 2014 the Claimant’s salary from 1 to 21 February 2014, which is a one
month prior notice as from termination letter dated “21 January 2014”, but
received on 11 February 2014.
11.
Finally, the Claimant informed FIFA that he remained unemployed as from 11
February 2014.
II.
Considerations of the DRC judge
1.
First, the Dispute Resolution Chamber (DRC) judge (hereinafter: DRC judge)
analysed whether he was competent to deal with the case at hand. In this respect,
the DRC judge took note that the present matter was submitted to FIFA on 11
June 2014. Consequently, the DRC judge concluded that 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 par. 2 and 3 of the Procedural Rules).
2.
With regard to the competence of the DRC judge, art. 3 of the Procedural Rules
states that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24
of the Regulations on the Status and Transfer of Players (editions 2012 and 2014).
In accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b)
of the aforementioned Regulations, the DRC judge is competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B and a club from country
D, the litigious value of which does not exceed CHF 100,000.
3.
Subsequently, the DRC judge 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, he 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
Player A, country B / Club C, country D
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considering that the present claim was lodged in front of FIFA on 11 June 2014,
the 2012 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well as
the documentation contained in the file. However, the DRC judge emphasised
that in the following considerations he will refer only to the facts, arguments and
documentary evidence which he considered pertinent for the assessment of the
matter at hand.
5.
In this respect, the DRC judge acknowledged that the Claimant and the
Respondent had concluded an employment contract valid as from 1 August 2013
until 31 May 2014. Further, the DRC judge observed that it is undisputed by the
parties that the Claimant was entitled to a monthly salary amounting USD 5,000 as
per the contract provided by the player and issued by the club.
6.
The DRC judge further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking the payment of compensation for breach of
contract in the amount of USD 16,251.65, corresponding to the residual value of
the contract from 22 February 2014 until the month of May 2014. More
specifically, the Claimant indicated that the Respondent had terminated the
employment contract with him on 11 February 2014 because of the suspension by
the Football Association of country D, which is not a just cause.
7.
In continuation, the Chamber noted that the Respondent insisted that it had
terminated the contract on the basis of valid reasons, namely because the
Claimant failed to disclose his conviction of match fixing in country B in 2010 (cf.
point. I.8. above). In particular, the Respondent held that “Failure to disclose such
Player A, country B / Club C, country D
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information that is material to the contract result in breach by the player in case
of serious misconduct leading to termination of contract”.
8.
In this context, the DRC judge acknowledged that it had to examine whether the
reasons put forward by the Respondent could justify the termination of the
contract in the present matter.
9.
In this respect, the DRC judge was 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 fulfilment 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.
Furthermore, the DRC judge also deemed it appropriate to remind the parties
of the content of art 12 par. 3 of the Procedural Rules, according to which:
“Any party claiming a right on the basis of an alleged fact shall carry the
burden of proof”.
11.
In this context, the DRC judge observed that the only evidence submitted by the
Respondent in support of its allegation that the player was convicted of match
fixing are media sources which are not verified. In this regard, the DRC judge was
eager to emphasize that press articles not accompanied by any official
documentation supporting their content cannot be taken into account as
substantial evidence, due to their informal and non-legal character.
12.
On account of the above, the DRC judge decided that the Respondent failed to
provide any substantial evidence that it had a just cause to unilaterally terminate
the employment relationship between the Claimant and the Respondent.
Player A, country B / Club C, country D
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Therefore, the DRC judge concluded that the Respondent had terminated the
employment contract without just cause on 11 February 2014 and that,
consequently, the Respondent is to be held liable for the consequences of such
early termination.
13.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the DRC judge
focused his attention on the consequences of such termination. Taking into
consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the
Claimant would, in principle, be entitled to receive from the Respondent an
amount of money as compensation for breach of contract.
14.
Subsequently, the DRC judge focused his attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing
so, the DRC judge 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.
15.
In application of the relevant provision, the DRC judge held that he first of all
had to clarify as to whether the pertinent employment 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. In this regard, the DRC judge established that no such
compensation clause was included in the employment contract at the basis of
the matter at stake.
Player A, country B / Club C, country D
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16.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation
of the monies payable to the player under the terms of the employment
contract as from 22 February 2014, as requested by the Claimant, until 31 May
2014 and concluded that the Claimant would have received a total
remuneration of USD 16,250 had the contract been executed until its expiry
date.
17.
The DRC judge 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. In this regard, the DRC
judge 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 DRC judge found it reasonable that the Claimant had not
been able to find new employment within the relevant period of
approximatively 3 months following the termination.
18.
Consequently, on account of all the above-mentioned considerations and the
specificities of the case at hand, the DRC judge decided to partially accept the
Claimant´s claim and that the Respondent must pay USD 16,250, which was to
be considered reasonable and proportionate as compensation for breach of
contract in the case at hand.
19.
In addition, taking into account the Claimant’s request, the DRC judge decided
to award the Claimant interest at the rate of 5% p.a. as of the day following
the day on which each of the payments included in the global amount of USD
16,250 fell due in accordance with the pertinent employment contract.
Player A, country B / Club C, country D
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20.
Finally, the DRC judge held that the Claimant’s claim for legal costs is rejected
in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence.
21.
The DRC judge concluded his deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
*****
III.
Decision of the DRC judge
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 this decision, the amount of USD 16,250 plus 5%
interest p.a. until the date of effective payment as follows:
- 5% p.a. as of 11 March 2014 on the amount of USD 1,250;
- 5% p.a. as of 11 April 2014 on the amount of USD 5,000;
- 5% p.a. as of 11 May 2014 on the amount of USD 5,000;
- 5% p.a. as of 11 June 2014 on the amount of USD 5,000.
3.
In the event that the amount due to the Claimant plus interest 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.
Player A, country B / Club C, country D
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5.
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
DRC judge 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 DRC judge:
Markus Kattner
Acting Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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