Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 March 2017,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Pavel Pivovarov (Russia), member
Roy Vermeer (Netherlands), member
Jon Newman (USA), member
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 17 June 2016, the player from country B, Player A (hereinafter: the Claimant)
and the club from country D, Club C (hereinafter: the Respondent) concluded an
employment contract (hereinafter: the contract), valid as of 1 July 2016 until 31
December 2018. In this regard, art. 1 of the contract specifies, inter alia, that
“[t]he contract will be effective only when the [Claimant] has:
- Passed the medical examination by the [Respondent]’s appointed doctor or
hospital;
- Summited all necessary health or illness background document (…)”.
2.
Pursuant to the contract, the Claimant was entitled to the following
remuneration:
- USD 270,000 as annual salary;
- USD 20,000 as sign-on fee payable in two instalments of USD 10,000 in August
2016 and January 2017 respectively;
- USD 1,000 per month as housing allowance;
- One business and two economy roundtrip flight tickets city E – country B or
country F per season;
- a car.
3.
Furthermore, art. 3 of the contract provides, inter alia, for the following:
“The [Claimant] shall:
(…)
3.4 strictly and fully comply with any laws as well as any and all rules, regulations,
conditions statements, instructions and recommendations given by the
[Respondent] and/or the [Respondent]’s management/executives
(…)
3.6 submit medical certificates to the [Respondent] upon occurences of injury,
illness or any other reasons that will limit or restrict his attendance or
participation in any training sessions or matches as designated by the
[Respondent], and shall immediately notify the [Respondent] of such facts in
writing (or by any other means as the [Respondent] may deem appropriate”.
4.
In addition, art. 6 of the contract stipulates that “[i]n case of interruption of the
collaboration by the [Respondent] or if the [Respondent] breaches the contract
and sacks the [Claimant] in advance within the term of the contract, the
[Respondent] must complete a maximum of three month salary as compensation
amount to the [Claimant]”.
Player A, country B / Club C, country D
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5.
On 30 August 2016, the Respondent terminated the contract based on the
Claimant’s failure to submit his medical record and his alleged incapacity to play
football. In this regard, the Respondent offered to pay to the Claimant the
amount of USD 67,500 as per art. 6 of the contract as well as USD 10,000
corresponding to part of the sign-on fee.
6.
On 14 September 2016, the Claimant sent a correspondence to the Respondent,
challenging the validity of the termination and requesting compensation.
7.
On 12 October 2016, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting:
USD 32,500 as outstanding remuneration as follows:
- USD 22,500 corresponding to his salary for August 2016;
- USD 10,000 corresponding to the first instalment of the sign-on fee;
USD 687,833.33 as compensation corresponding to the residual value of the
contract as follows:
- USD 10,000 as sign-on fee;
- USD 630,000 as salaries;
- USD 28,000 as housing allowances;
- USD 14,000 as car rental;
- USD 5,833.33 as flight tickets.
8.
In his claim, the Claimant insists that in accordance with art. 18 par. 4 of the FIFA
Regulations on the Status and Transfer of Players, the validity of a contract cannot
be made subject to a successful medical examination. In this regard, the Claimant
insists that the Respondent should have proceeded to the medical examination
prior to signing the contract.
9.
In its reply to the claim, the Respondent explains that when arriving in country D
on 16 June 2016, the Claimant refused to take a medical examination, informing
the Respondent that he was fit and that he would provide it with his medical
records before the starting date of the contract. Therefore, the Respondent states
that it decided to sign the contract in good faith on 17 June 2016. Nevertheless,
and due to the Claimant’s failure to comply with his commitment, the Respondent
alleges that it obliged the Claimant to undertake a medical examination which
revealed that he “was not physically fit to play as professional football player”. In
view of the Claimant’s condition, the Respondent argues that the parties agreed
on “on a provisional period” during which the Claimant would follow a tailormade rehabilitation programme. The Respondent however sustains that the
Claimant refused to strictly follow the programme, which is the reason why the
second medical examination taken on 25 August 2016 also revealed an incapacity
Player A, country B / Club C, country D
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to play professional football. Consequently, considering the Claimant’s bad faith
as well as art. 1, 3.4 and 3.6 of the contract, the Respondent asserts that it
terminated the contract and offered to pay USD 77,500, amount that the
Claimant has never collected.
10.
In continuation, the Respondent argues that art. 6 constitutes a valid
compensation clause by means of which in accordance with art. 17 par. 1 of the
FIFA Regulations on the Status and Transfer of Players, the parties consented that
in case of termination with or without just cause, the compensation payable
would be limited to three monthly salaries. Furthermore, the Respondent outlines
that art. 6 also complies with Labour Protection Act of country D. In this regard,
the Respondent points out that in such a situation of bad faith, the Labour
Protection Act of country D would have entitled it to terminate without paying
any compensation.
11.
Notwithstanding the above, and should it disregard art. 6 of the contract, the
Respondent requests FIFA to take into consideration the fact that “the recovery of
the [Claimant] will take even 2 years or more” and that “the injury happened
before the [Claimant] arrived in country D”. Moreover, the Respondent explains
that it had to hire a new player in order to compensate the loss of the Claimant.
Finally, the Respondent emphasises that the Claimant did not specify how he
evaluated the value of the flight tickets, the car rental and the accommodation.
12.
In view of the above, the Respondent offered to pay an amount of USD 100,000
broken down as follows:
- USD 67,500 as per art. 6 of the contract;
- USD 10,000 as outstanding sign-on fee;
- USD 22,500 as outstanding salary for August 2016.
13.
In his replica, the Claimant alleges that prior to signing the contract, on 17 June
2016, he undertook a medical examination which did not reveal any serious
anomaly. Nonetheless, the Claimant acknowledges that he had some discomfort
from an injury and informed the Respondent about it. Furthermore, the Claimant
maintains that he attended all the medical appointments arranged for him.
14.
In continuation, the Claimant reiterates his previous argumentation regarding the
breach of art. 18 par. 4 of the FIFA Regulations on the Status and Transfer of
Players.
15.
As to art. 6 of the contract, the Claimant argues that it must be deemed invalid
for lack of reciprocity. Moreover, the Claimant outlines that the clause establishes
Player A, country B / Club C, country D
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an amount which cannot be determined in advance and remains at discretion of
the Respondent, when it stipulates that the compensation “must compete a
maximum of three months salary”. Equally, the Claimant sustains that a maximum
amount of compensation equivalent to three monthly salaries is clearly
disproportionate, in particular considering the duration of the contract.
16.
In its final comments, the Respondent insists that the Claimant “did not have just
an injury but rather a very specific injury, namely an ‘Osteitis Pubis’ which makes
the case at stake different from all other cases brought to FIFA attention so far”.
In this respect, the Respondent outlines that this injury which results from
repetitive activities, surely affected the Claimant in the previous years. The
Respondent further explains that in order to diagnose such an injury, a doctor
needs to be aware of the patient’s medical records. Indeed, the Respondent
sustains that if the Claimant had informed the doctor of his medical records as
well as the pain he suffered, the latter would have taken more specific tests and
diagnosed the injury early enough to treat it. Having said this, the Respondent
recalls that according to a medical report issued by the hospital of city E, i.e. an
independent hospital, the Claimant’s recovery would take two years or more.
17.
In view of the above, the Respondent concludes that the contract should be
deemed null and void since it was vitiated by the Claimant’s bad faith.
18.
Notwithstanding the above, the Respondent argues that the Claimant tacitly
accepted the termination. In particular, the Respondent points out that between
30 August and 14 September 2016, the Claimant: (i) did not participate in the
training sessions; (ii) did not object to the termination; (iii) did not meet any of
the Respondent’s representative; (iv) did not fulfil any of his contractual
obligations.
II.
Considerations of the Dispute Resolution Chamber
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 12 October 2016. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
Player A, country B / Club C, country D
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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 from country B and a club from 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 par. 2 of the Regulations on the Status and Transfer of Players
(edition 2016), and considering that the present claim was lodged on 12 October
2016, the 2016 edition of said 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, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging 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.
5.
The members of the Chamber acknowledged that the parties were contractually
bound by means of an employment contract valid as from 1 July 2016 until 31
December 2018.
6.
Subsequently, the Chamber took into account that, according to the Claimant, the
Respondent had prematurely terminated the contract in writing on 30 August
2016. Equally, the DRC observed that said fact was confirmed by the Respondent.
7.
In continuation, the Chamber went on to deliberate whether the facts of the case
constituted a just cause for the Respondent to prematurely terminate the
employment contract.
8.
In this respect, the Chamber took due note of the Respondent’s argumentation
that it had terminated the contract with just cause on the basis of art. 1, 3.4 and
3.6 of the contract. In particular, the Chamber remarked that according to the
Respondent, the Claimant failed to provide his medical report and was no longer
able to provide his services to the club considering his alleged incapacity.
Player A, country B / Club C, country D
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9.
On the other hand, the members of the DRC noted that the Claimant points out
that the medical examination undertaken prior to signing the contract did not
reveal any serious anomaly and argues that, in any case, incapacity is not deemed
as a valid ground for termination of a contract.
10.
In this context, the Chamber was eager to emphasise that, according to its wellestablished jurisprudence, and as a general rule, a player’s injury does not
constitute a just cause in the sense of art. 14 of the Regulations for a club to
terminate a contract. Moreover, the Chamber, referring to the content of art. 18
par. 4 of the Regulations, insisted that once the parties concluded an employment
contract, they had the obligation to implement its terms and a club could not
unilaterally question the validity of the contract during its course based on the
physical state of the player.
11.
Furthermore, the Chamber deemed it important to point out that it is the
obligation of the Respondent to act with due diligence and perform all the
necessary exams to ascertain the health of the Claimant. In this regard, the
members of the Chamber outlined that contrary to the Respondent’s allegation,
the low number of games played by the Claimant during the previous season
should have aroused the Respondent’s suspicion and led the latter to conduct a
deeper medical examination prior to the conclusion of the contract.
12.
Additionally, the members of the Chamber turned their attention to the
argument of the Respondent relating to an alleged “provisional period” agreed
upon between the parties. In this regard, the Chamber noted that neither the
contract nor any other agreement contains any clause relating to a probation
period and, consequently, the Chamber unanimously agreed that this argument
of the Respondent must be rejected. In addition, for this reason, the Chamber
emphasised that there was no necessity to further analyse the question as to
whether such probation period could be considered lawful.
13.
On account of all of the above, the members of the Chamber unanimously
reached the conclusion that the Respondent terminated the contract without just
cause on 30 August 2016.
14.
Prior to establishing the consequences of the breach of 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 the contract was terminated by the Respondent.
Player A, country B / Club C, country D
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15.
In this regard, the Chamber observed that it remains uncontested that the
amount of USD 10,000 corresponding to the first instalment of the sign-on fee
due in August 2016 was outstanding. Furthermore, the Chamber considered that
even though the Claimant’s salary for August 2016 had not formally fallen due on
the date of termination, the Claimant had rendered his services to the
Respondent for the entire month of August 2016 and therefore decided to award
it to the Claimant as outstanding remuneration.
16.
Consequently, in accordance with the principle of pacta sunt servanda, the DRC
decided that the Respondent is liable to pay the Claimant the amount of USD
32,500 as outstanding remuneration.
17.
Having established the above, the Chamber focused its attention on the
calculation of the amount of compensation payable to the Claimant by the
Respondent 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.
18.
In application of the relevant provision, the Chamber held that it first had to
clarify as to whether the pertinent employment contract contained 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 in accordance with art. 6 of
the contract, “[i]n case of interruption of the collaboration by the club or if the
club breaches the contract and sacks the [Claimant] in advance within the term of
the contract, the club must complete a maximum of three month salary as
compensation amount to the [Claimant]”.
19. In this respect, the members of the Chamber agreed that this clause is to the
benefit of the Respondent only, as it does not grant the same rights to the
Claimant. In other words, the DRC considered that the relevant clause is in direct
opposition with the general principle of proportionality and the principle of
balance of rights of the parties since it provides benefits only towards the
Respondent with no equivalent right in favour of the Claimant. Indeed, the
Chamber outlined that in case the Claimant had been the party in breach, the
Player A, country B / Club C, country D
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Respondent would have had the possibility to claim and likely been awarded an
amount of compensation much higher than three monthly salaries considering
the remaining duration of the contract. Therefore, the Chamber concluded that
said clause could not be taken into consideration in the determination of the
amount of compensation.
20.
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 non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
21.
In order to estimate the amount of compensation due to the Claimant in the
present case, the members of the Chamber first turned their attention to the
remuneration and other benefits due to the Claimant under the existing contract
and/or any other earnings made within the residual contractual period, 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 any subsequent earnings, if any, in the calculation of the amount of
compensation.
22.
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
until 31 December 2018, taking into account that the Claimant´s remuneration
until August 2016 is included in the calculation of the outstanding remuneration.
Consequently, the Chamber concluded that the amount of USD 668,000, i.e.
remuneration as from September 2016 until December 2018, serves as the basis
for the determination of the amount of compensation for breach of contract.
23.
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.
24.
The Chamber noted that it appears from the documentation on file that the
Claimant did not sign any contract with a new club within the relevant period.
Player A, country B / Club C, country D
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Thus, the Claimant had apparently not been able to mitigate damages. In this
context, the DRC declared that there is no remuneration to be taken into account
in order to mitigate the amount of compensation for breach of contract.
25.
In this respect and bearing in mind all of the above-mentioned considerations and
the specificities of the case at hand, the Chamber decided that the Respondent
must pay the amount of USD 668,000 to the Claimant, which was to be considered
a reasonable and justified amount of compensation for breach of contract in the
present matter.
26.
Furthermore, regarding the Claimant’s claim pertaining to flight tickets, referring
to the relevant terms of the employment contract (cf. point I.2 above) and the
information provided by FIFA Travel, the Chamber decided that the Respondent
must pay to the Claimant the amount of USD 2,150 for the Claimant’s return to
his home country.
27.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the Claimant is rejected.
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 this decision, outstanding remuneration in the amount of USD
32,500.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract amounting to USD
670,150.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned points 2. and 3. are not paid by the Respondent within the stated time
limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned
time limits and 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.
Player A, country B / Club C, 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 motivated decision (legal remedy):
According to art. 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, country B / Club C, country D
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