Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 20 April 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Moham ed Mecherara (Algeria), member
Leonardo Gros s o (Italy ), 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.
According to the player of Country B, Player A (hereinafter: player or
Claimant), on 15 February 2016, he and the club of Country D, Club C
(hereinafter: club or Respondent), signed an employment contract
(hereinafter: contract) valid as from 1 February 2016 until 31 December 2016.
2.
According to the contract, the club undertook to pay the player a monthly
salary of USD 15,000 payable on the last day of each month.
3.
The contract contains the following clause: “In case of interruption of the
collaboration by the club or if the club breaches the contract and sacks the
“coach” in advance within the term of the contract, the club must compensate
an amount equivalent to – two (2) months’ salary as severance compensation
to the player. If the Club terminates agreement prior to the end date due to
breach in terms of contract by the player, the breach must be reported in
writing to the player within 10 days of occurrence”.
4.
On 29 March 2016, the player sent a letter to the club requesting written
approval to return to Country B to seek medical advice regarding his injury,
setting a time limit until 1 April 2016 for the club to reply.
5.
On 4 April 2016, the player terminated the contract by means of a letter
addressed to the club, stating that his previous letter remained unanswered
and that the club breached the contract by not allowing him to seek medical
advice in Country B. In said letter, the player argued that the club offered the
player a mutual termination of the contract and therefore lost its interest in
the player’s services.
6.
On 20 April 2016, the club sent a letter to the player requesting him to return
to the club before 27 April 2016 in order “to start curing injuries process”.
7.
On 27 April 2016, the player replied to the club in writing, referring to his
previous correspondence, stating that he has no reason to return to Country
D. Furthermore, he requested payment of his outstanding receivables plus
compensation from the club.
8.
On 30 April 2016, the club sent a letter to the player, confirming its willingness
to work with the player after his recovery and requesting him to return until 5
May 2016.
9.
On 10 May 2016, the player sent a letter to the club, reiterating his position.
Player A, Country B/ Club C, Country D
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10.
On 24 May 2016, the player lodged a claim in front of FIFA against the club
maintaining that the latter is to be held liable for the early termination of the
contract and requested to be awarded payment of the following monies:
- USD 9,318.45 corresponding to outstanding remuneration;
- USD 133,000 as compensation for breach of contract corresponding to the
residual value of the contract.
In addition, the player requested 5% interest p.a. on these amounts.
11.
In his arguments, the player maintained that he only received an incomplete
version of the employment contract from the club, despite having requested a
complete version. In this regard, he submitted his version of the contract as
well as match reports and a printout of the official webpage of the club,
listing him as a player of the Respondent.
12.
Moreover, the player held that he terminated the contract with just cause,
since the club did not allow him to return to Country B for a second medical
opinion and due to the fact that the club lost its interest in the player’s
services, which was indicated by the club’s offer for a mutual termination of
the contract.
13.
In this regard, the player argued that he sustained an injury on 16 March 2016
during a league match.
14.
The player held that he had the right to seek a second medical opinion and, in
this respect, he refererred to FIFA circular no. 1171, dated 24 November 2008,
regarding “Professional Football Player Contract Minimum Requirements”, art.
5.5 of which reads as follows: “The Player has a right of a second opinion by
an independent medical specialist if he contests the opinion of the club’s
specialist. […]”.
15.
Furthermore, the player argued that he only received the total amount of USD
22,681.53 as salaries up to the termination of the contract. Therefore, he
claimed that parts of his salary for March 2016, in the amount of USD 7,318.47
and the salary for 4 days in April 2016 in the amount of USD 2,000, remained
outstanding.
16.
Moreover, the player claimed compensation for breach of contract in the
amount of USD 133,000, corresponding to the salary for 26 days in April 2016,
i.e. USD 13,000, and the salaries as of May 2016 until December 2016.
17.
According to the information contained in the Transfer Matching System
(TMS), the player remained unemployed during the relevant period until 31
December 2016.
Player A, Country B/ Club C, Country D
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18.
Despite having been invited to do so, the club has not submitted its position
regarding the player’s claim.
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 24 May 2016. Consequently, the Rules governing the procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition
2015; hereinafter: Procedural Rules) are 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 and par.
2 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 employmentrelated 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
24 May 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.
5.
First of all, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent maintaining that a valid and binding
employment contract was concluded between the parties and that he had
terminated said employment contract with just cause on 4 April 2016 since the
club did not allow him to return to his home country for a second medical
opinion. In this respect, the Claimant submits to have only received a part of
the salary for March 2016 at the time he terminated the employment contract.
Player A, Country B/ Club C, Country D
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Consequently, the Claimant asks to be awarded his outstanding dues as well as
the payment of compensation for breach of the employment contract.
6.
The Respondent, for its part, failed to present its response to the claim of the
Claimant, in spite of having been invited to do so. Consequently, the Chamber
deemed that the Respondent had renounced to its right of defence and, thus,
had accepted the allegations of the Claimant.
7.
As a consequence of the aforementioned consideration, the members of the
Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural
Rules, a decision shall be taken upon the basis of the documents already on
file, in other words, upon the statements and documents presented by the
Claimant.
8.
In this respect, and since the player submitted an incomplete version of the
contract, the Chamber first needed to establish if a valid and binding
employment contract was concluded by the parties. In this regard, the
members of the Chamber took into account that a complete version of the
employment contract was available in the Transfer Matching System (TMS).
9.
Taking into consideration the fact that the Respondent did not contest the
Claimant’s argumentation and since the documentation submitted by the
player matches the information contained in the TMS, the DRC concluded that
a valid and binding employment contract was signed by the parties, valid as
from 1 February 2016 until 31 December 2016. In accordance with said
contract, the club undertook to pay the Claimant a monthly salary in the
amount of USD 15,000.
10.
Having said this, the DRC acknowledged that the central issue in the matter at
stake was to determine as to whether the contract was terminated by the
Claimant with or without just cause and to decide on the consequences
thereof.
11.
In doing so, the Chamber recalled that it has remained undisputed that the
Claimant terminated the contract on 4 April 2016 by means of a letter,
alleging that he had just cause since the club did not give him the requested
permission to return to his home country for a second medical opinion and
since the club lost its interest in his services.
12.
In this respect, the Chamber 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
Player A, Country B/ Club C, Country D
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to ensure the employee’s fulfillment 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.
13.
In view of the above, the Chamber observed that the player requested
permission to leave on 29 March 2016, which remained unanswered by the
club.
14.
Furthermore, the DRC noted that the Claimant did not submit any
documentation supporting his allegation that the club, in fact, lost its interest
in his services and he failed to submit any proof of the club’s alleged offer to
mutually terminate the contract. Notwithstanding the above, in any case, an
offer for a mutual termination of a contract cannot per se be considered as
proof that a club lost its interest in the player’s services.
15.
What is more, at a later stage, the club requested the player to return.
Moreover, the members of the Chamber took note that a part of the player’s
salary of March 2016 remained outstanding.
16.
In this respect, the DRC found that more lenient measures could have been
taken by the Claimant before terminating the contract. In consideration that
the Claimant had not presented valid reasons to justify such termination as an
ultima ratio measure, the Chamber decided that the Claimant had no just
cause to unilaterally terminate the employment relationship between the
parties and, therefore, concluded that the Claimant had terminated the
employment contract without just cause on 4 April 2016.
17.
On account of the above, the Chamber decided to reject the player’s claim for
compensation for breach of contract.
18.
In continuation, the DRC acknowledged that, in accordance with the
employment contract, the Respondent was obliged to pay to the Claimant a
monthly remuneration in the amount of USD 15,000, payable on the last day
of each month.
19.
In this respect, the Chamber took into consideration that it remained
uncontested that the Respondent failed to pay the Claimant’s remuneration in
the total amount of USD 9,318.45, corresponding to parts of his salary for
March 2016, i.e. USD 7,318.47 and the salary for 4 days in April 2016, i.e. USD
2,000. Consequently, the Claimant requested to be awarded with the payment
of the total amount of USD 9,318.45.
Player A, Country B/ Club C, Country D
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20.
Taking into account the documentation presented by the Claimant in support
of his petition, the Chamber concluded that the Claimant had substantiated
his claim pertaining to outstanding remuneration with sufficient documentary
evidence.
21.
On account of the aforementioned considerations, the members of the
Chamber established that the Respondent failed to remit a part of the
remuneration in the total amount of USD 9,318.45 up to the termination of
the Claimant.
22.
Consequently, the DRC decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the
Claimant outstanding remuneration in the total amount of USD 9,318.45.
23.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of
USD 9,318.45 as from 4 April 2016 until the date of effective payment.
24.
Finally, the DRC concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
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 USD 9,318.45 plus 5% interest p.a. as of 4 April 2016 until the
date of effective payment.
3.
In the event that the aforementioned amount and interest due to the
Claimant are not paid by the Respondent within the stated time limit, the
present matter shall be submitted, upon request, to FIFA’s 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 is to be made and to notify
the Dispute Resolution Chamber of every payment received.
*****
Player A, Country B/ Club C, Country D
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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, Country B/ Club C, Country D
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