Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 17 May 2013,
by Theo van Seggelen (Netherlands), DRC judge
on the claim presented by the player,
Player A, from country S
as Claimant
against the club,
Club L, from country C
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 19 May 2010, the Player A, from country S (hereinafter referred to as player or
Claimant) and Club L, from country C (hereinafter referred to as club or Respondent)
concluded an employment contract valid for two sporting seasons, i.e. as from 1 July 2010
until 30 May 2012 (hereinafter: contract).
2.
According to art. 1 and art. 2 of the contract, the player was inter alia entitled to receive
the following amounts:
EUR 45,000 for the first sporting season, to be paid in ten equal installments of EUR
4,500 as from 31 August 2010 until 30 May 2011;
EUR 55,000 for the second sporting season, to be paid in ten equal installments of
EUR 5,500 as from 31 August 2011 until 30 May 2012.
3.
Art. 5 of the contract stipulates that the club has the right to terminate the contract
without paying any damages and/or compensation to the player if the club is relegated
to a lower division at the end of either of the sporting seasons.
4.
Art. 7 of the contract establishes that due to the player’s injury in the previous season,
the club has the right to terminate the contract at any time without paying any damages
if the player is injured and unable to offer his services to the club for more than two
months as from the day he sustained the injury.
5.
According to art. 8 of the contract, the club can terminate the contract at any time for a
good cause, i.e. in case “the player does not conduct himself on and off the football pitch
in a manner suitable to a non amateur football player, and or if the player shows
disrespect an or disobedience to the manager of the club as a professional player and or
if he makes statements or actions not suitable to a standard of a professional player
deemed by the committee of the club as such at its absolute discretion but not before
giving the player the right to defend himself in front of such committee.”
6.
Art. 20 of the contract stipulates that “all terms, conditions herein contained herein shall
be fundamental terms hereof and of essence any breach or non-performance by either
party hereof any of these terms shall render him liable for the payment of damages and
or the right to terminate the agreement and claim damages and interest”.
7.
By means of a letter dated 23 May 2011 (hereinafter referred to as termination letter),
the club informed the player that his conduct on and off the football pitch was not
suitable and that he contravened his contractual duties. As a result, the club informed the
player that he was in breach of art. 7, 8 and 20 of the contract and that it terminated the
contract without prejudice “to sue [the player] for damages for breach of contract.”
8.
Furthermore, and in the same letter, the club informed the player that the club’s
committee had imposed a fine upon him in the amount of two monthly salaries as a
result of his contractual breaches.
Player A, from country S / Club L, from country C
2/9
9.
On 30 December 2011, the player replied to the club rejecting the club’s allegations
regarding his behaviour and summoned the club to pay him his full salary until the end
of the contract. According to the player, the club never replied to his letter.
10. On 6 June 2012, the player lodged a claim before FIFA against the club for breach of
contract without just cause.
11. In this respect, the player denied the club’s allegations relating to his alleged misconduct
and pointed out that whilst terminating the contract with him, the club did not comply
with the stipulations of art. 8 of the contract, this is, it failed to give him the opportunity
to defend himself in front of the club’s committee. According to the player, the club’s
immediate termination of the contract by means of the termination letter is not in line
with the contractual stipulations, as the player could not defend himself, and the fact
that the club did not send him any previous warning not only reveals the club’s breach,
but also that its allegations lack any basis.
12. In this context, the player requested the imposition of sporting sanctions upon the club as
well as to be awarded the total amount of EUR 64,000 plus 5% interest as from the
respective due dates, as follows:
outstanding salaries in the amount of EUR 7,950, corresponding to the full salary of
the month of April 2011, i.e. EUR 4,500, plus 23 days calculated pro rata temporis of
the salary of the month of May 2011, i.e. EUR 3,450;
compensation for breach of contract in the amount of EUR 56,050 corresponding to
the residual value of the contract, i.e. EUR 1,050 corresponding to the last days of the
month of May 2011 plus EUR 55,000, corresponding to the full amount payable by
the club in relation with the second sporting season.
13. The player concluded by explaining that after having left the club, he played as an
amateur player between 9 August 2011 until 1 February 2012 with the Club R and
submitted a document issued by said club specifying that he did not receive any salary
from this club.
14. In reply to the claim, the club fully rejected the player’s allegations and brought forward
that its unilateral termination of the contract by means of the termination letter dated
23 May 2011 was justified by a just cause, i.e. the player’s misconduct and disrespect of
crucial articles of the employment contract.
15. Furthermore, the club considered that the termination of the contract dated 23 May 2011
is also justified due to a sporting just cause, since the player, as a result of his
misbehaviour, participated in less than 10% of the club’s official matches.
16. With regard to the salaries claimed as outstanding by the player, the club held that it
does not owe any amount to the player, since the latter never paid the fine he was
imposed upon by the club. Therefore, by having decided not to pay him his last two
monthly salaries, the club set off the unpaid fine against the player’s credit.
Player A, from country S / Club L, from country C
3/9
17. Finally, the club explained that after the player received the termination letter dated 23
May 2011, he left the club and did not react before 30 February 2012. The club held that
the player did not react to said letter earlier, because he had no legal grounds for his
request. In the club’s point of view, it is the player himself that “gave away his right to be
heard by the Committee of the club, although they had given him a chance to do so.”
II. Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case at
hand. In this respect, he took note that the present matter was submitted to FIFA on 6
June 2012. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 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 2012) he is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a country S player and a country C
Club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26 par.
1 and par. 2 of the Regulations on the Status and Transfer of Players (editions 2012 and
2010), and considering that the present claim was lodged on 6 June 2012, the 2010
edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand
as to the substance.
4.
In continuation, and entering into the substance of the matter, the DRC judge firstly
acknowledged that, on 19 May 2010, the Claimant and the Respondent concluded an
employment contract valid during 2 sporting seasons, i.e. as from 1 July 2010 until 30 May
2012.
5.
The DRC judge further noted that the Respondent put an end to the contractual relation
with the Claimant by means of its termination letter dated 23 May 2011 and that such
fact is undisputed by the parties.
6.
However, the DRC judge observed that the Claimant and the Respondent have opposite
positions in connection with the reasons that have led the Respondent to terminate the
employment contract with the Claimant.
7.
In this respect, the DRC judge recalled that, be it in the contents of the termination letter
at stake and/or in its reply to the Claimant’s claim lodged before this decision-making
body, the Respondent asserted that the just cause it had to terminate the contract
resulted from the Claimant’s various breaches of the contract and misconducts.
Player A, from country S / Club L, from country C
4/9
8.
On the other hand, the DRC judge also noted that, be it in the letter dated 30 December
2011 he sent to the club and/or in the contents of his submissions before this decisionmaking body, the Claimant denied having misbehaved during the execution of the
contract and, consequently, he asserted that the Respondent’s termination of the
contract is unjustified.
9.
In view of the above-mentioned dissenting view of the parties, the DRC judge turned his
attention to the fundamental question as to whether the Respondent had just cause to
unilaterally terminate the contract.
10. Reverting firstly to the Respondent’s arguments contained in the termination letter dated
23 May 2011, and which are reiterated in the Respondent’s reply to the Claimant’s claim,
the DRC judge noted that in said letter, the Respondent held that the Claimant’s
behaviour on and off the pitch was in contravention with his contractual duties and it
referred to art. 8 and art. 20 of the employment contract.
11. In the Respondent’s opinion, it therefore had a legitimate possibility to unilaterally
terminate the contract signed with the Claimant by means of the letter at stake.
12. In this context, the DRC judge wished to recall the general legal principle set forth in art.
12 par. 3 of the Rules and which reads that any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
13. However, and after a thorough analysis of the documentation available on file, the DRC
judge found that the Respondent had not submitted any documentary evidence
demonstrating the Claimant’s alleged misconduct referred to by the Respondent. What is
more, the DRC judge highlighted that the Respondent, prior to having terminated the
employment contract, had not warned the Claimant of any misconduct.
14. In view of the above, the DRC judge inevitably came to the conclusion that the argument
of the Respondent that the termination of the contract was justified by the Claimant’s
misconduct and disrespect of his contractual obligations was to be rejected.
15. In this context, 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 without prior warning.
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 assure 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 always only be an ultima ratio.
16. In continuation, the DRC judge, due to the lack of a (valid) legal basis, rejected the
Respondent’s argument that it could legitimately terminate the contract due to the fact
that the Claimant, because of his alleged misconduct, participated in less than 10% of the
official matches.
Player A, from country S / Club L, from country C
5/9
17. In light of all of the above, the DRC judge decided that the Respondent’s early and
unilateral termination of the employment contact signed with the Claimant by means of
the termination letter dated 23 May 2011 was deprived of just cause.
18. Having established that the Respondent is to be held liable for the early termination of
the employment contract without just cause on 23 May 2011, the DRC judge focussed his
attention on the consequences of such breach of contract.
19. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that
the Claimant is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding payments, if any, on the basis of the employment
contract.
20. The DRC judge then reverted to the Claimant’s financial claim, which includes
outstanding remuneration amounting to EUR 7,950, corresponding to salaries for the
months of April 2011 and May 2011, the amount due in relation to the latter month
being calculated pro rata temporis by the Claimant.
21. In this respect, the DRC judge reverted to the contractual terms and noted that according
to the employment contract, the Claimant’s salaries were payable by the Respondent in
ten equal installments between 31 August 2010 and 30 May 2011, the last installment of
the first sporting season falling due on 30 May 2011.
22. In view of the above, the DRC judge considered that at the time of the termination of the
contract without just cause by the Respondent, i.e. on 23 May 2011, the monthly salary
corresponding to the month of May 2011 had not yet fallen due. Consequently, the DRC
judge considered that a priori, only the salary corresponding to the month of April 2011
appeared to be outstanding and had fallen due at the time of the termination of the
contract by the Respondent.
23. Continuing his analysis, the DRC judge reverted to the Respondent’s position in relation
to the Claimant’s claim for outstanding salaries and noted that according to the
Respondent, the two salaries claimed by the Claimant as outstanding salaries were set off
by two fines that had been imposed upon the Claimant by the Respondent as a result of
the Claimant’s alleged misconducts.
24. In view of the above, the DRC judge came to the conclusion that based on the
Respondent’s argumentation, it could be understood that the Respondent had not paid
the salaries of April 2011 and May 2011 to the Claimant.
25. What is more, and bearing in mind the aforementioned considerations relating to the
Respondent’s termination of the contract, the DRC judge held that as the Respondent
failed to prove that the Claimant would have been misbehaving and/or breached his
contractual obligations, the fines imposed upon the Claimant on this basis are to be
considered as deprived of any justification, let alone the fact that the Respondent neither
Player A, from country S / Club L, from country C
6/9
proved the actual existence of the two fines at stake nor the underlying procedure and/or
decision of the club in relation to the imposition of such fines upon the Claimant.
26. As a result, the DRC judge concluded that the two fines referred to by the Respondent
were to be disregarded. Irrespective of this conclusion and for the sake of good order,
the DRC judge pointed out that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a means to set off outstanding financial
obligation towards players.
27. Consequently, the DRC judge decided that the Respondent is liable to pay to the
Claimant the outstanding amount of USD 4,500 related to the Claimant’s salary of April
2011.
28. In addition, taking into consideration the Claimant’s claim and the constant practice of
the Dispute Resolution Chamber in this regard, the DRC judge decided to award the
Claimant interest at the rate of 5% p.a. on the aforementioned salary, to be calculated as
from the day following the day on which the salary had fallen due.
29. In continuation, the DRC judge focussed his attention on the calculation of the amount
of compensation for breach of contract in the case at stake.
30. 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.
31. 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 which
the parties had beforehand agreed upon an amount of compensation payable by either
contractual party in the event of breach of contract.
32. No such provision having been inserted in the contract at the basis of the present matter,
the DRC judge determined that the amount of compensation payable by the Respondent
to the Claimant as compensation for breach of contract had to be assessed in application
of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC judge
recalled that said provision provides for a non-exhaustive 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. In this regard, the DRC judge emphasised beforehand that each request
for compensation for contractual breach has to be assessed on a case-by-case basis taking
into account all specific circumstances of the respective matter.
Player A, from country S / Club L, from country C
7/9
33. In order to estimate the amount of compensation due to the Claimant in the present
case, the DRC judge first turned his attention to the remuneration due to the Claimant
under the existing contract and agreement and/or the new contract, which criterion was
considered by the DRC judge to be essential. The DRC judge deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows him to take into
account both the existing contract and the new contract in the calculation of the amount
of compensation.
34. Bearing in mind the foregoing, the DRC judge first proceeded with the calculation of the
remuneration payable to the Claimant under the terms of the employment contract until
30 May 2012.
35. Consequently, the DRC judge concluded that the amount of EUR 59,500, i.e. the total
remuneration as from 1 May 2011 until 30 May 2012 based on the contract serves as the
basis for the final determination of the amount of compensation for breach of contract
in the case at hand.
36. Bearing in mind the constant practice of the Dispute Resolution Chamber as well as the
general obligation of the player to mitigate damages, the DRC judge took due note of
the employment situation of the Claimant after the termination of the employment
contract signed with the Respondent. He noted in this respect that, between 9 August
2011 and 1 February 2012, the player was registered as an amateur player with the club
Club R and that the Claimant, as confirmed by the aforementioned club itself, did not
receive any salary from said club during this period of time.
37. For all the above considerations, the DRC judge decided to partially accept the Claimant’s
claim and that the Respondent must pay the amount of EUR 59,500 to the Claimant as
compensation for the unilateral breach of contract without just cause by the Respondent.
38. In addition, taking into consideration the Claimant’s claim and the constant practice of
the Dispute Resolution Chamber in this respect, the DRC judge decided to award the
Claimant interest at the rate of 5% p.a. on the aforementioned amount of compensation
for breach of contract, to be calculated as from the day of the present decision.
39. The DRC judge concluded his deliberations in the present matter by establishing that any
further claims of 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 L, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, outstanding remuneration in the amount of EUR 4,500 plus
interest at the rate of 5% p.a. as from 1 May 2011 until the date of effective payment.
Player A, from country S / Club L, from country C
8/9
3.
The Respondent, Club L, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount of EUR
59,500 plus interest at the rate of 5% p.a. as of 17 May 2013 until the date of effective
payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
deadlines, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and decision.
5.
Any further request filed by the Claimant is rejected.
6.
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 (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
Deputy Secretary General
Encl.: CAS directives
Player A, from country S / Club L, from country C
9/9