Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 12 May 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 between the parties
I.
Facts of the case
1.
On 18 December 2013, the Player A from country B (hereinafter: player or Claimant)
and the Club C from country D (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract), valid from 1 December 2013 until 30
November 2014 ‘or until the end of the season 2014’.
2.
According to the contract, the player was entitled to a monthly salary of 150,000,
payable at the end of each month.
3.
Article 6 of the contract provides for the following: ‘If any of the below followings,
the employer has the right to dismiss the player contract: (6.1) When the player’s
performance does not reach the standards or pre requisites set out by the employer’
(6.2) When the player ignores the rules and regulations from the employer or his
team’. According to article 7 of the contract, a ‘release from the contract’ shall take
place ‘when the player neglects his responsibilities at work for more than 3
consecutive days in a row without any proper explanation’.
4.
According to the player, the club did not make any payments to him after June 2014
and unilaterally terminated the contract without having just cause, on or around 30
June 2014.
5.
On 8 September 2014, the player requested the club to pay his salaries for July,
August, September, October and November 2014, amounting to 750,000 in total. On
25 September 2014, the club answered by forwarding the player several documents,
which were allegedly sent to the player in May 2014.
6.
In two documents, dated 16 May 2014 and 17 May 2014, the club warned the player
that he had not shown up for the training sessions of the club between 13 May 2014
and 16 May 2014 and asked him to attend the next training sessions. In a document
dated 19 May 2014, the club informed the player that he ‘broke a promise made to
the club’ and that the club ‘can continue’ according to article 5, 6 and 7 of the
contract.
7.
In a document dated 17 September 2014, the club informed the player that it wanted
to cancel the contract, because (1) he had not become an important player in the
team and (2) the player ‘don’t make himself physically be ready to play even a match
in all competitions, league of country D, league cup of country D and cup of country
D, before finishing the first leg, the club has found solution for Mr. Player A by
borrow to play another club in the second leg, but Mr. Player A refused to obey by
the club order following’.
8.
The player informed the club on 26 September 2014 and 10 October 2014 in writing
that he was not absent from the training sessions between 13 and 16 May 2014 and
that he only received the documents, allegedly sent to him in May 2014, on 25
September 2014. Further, the player stated that the club had no just cause to
Player A, country B / Club C, country D
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terminate the contract and requested again that the club pay the total amount of
750,000. According to the player, the club did not respond to his request, nor did it
pay the requested amount.
9.
On 21 October 2014, the player lodged a claim against the club in front of FIFA,
asking that the club be ordered to pay the amount of 750,000 as compensation for
breach of contract plus 5% interest and that sporting sanctions be imposed on the
club.
10.
The player explained that until the alleged termination of the contract, he fulfilled
‘all duties assigned to him by the club’ and that he was not absent from training
sessions between 13 and 16 May 2014. Also, the player stated that his alleged poor
performance cannot be a valid reason for the club to terminate the contract.
Therefore, the player concludes that the club terminated the contract without having
just cause.
11.
In its reply to the claim of the player, the club alleges that shortly after the arrival of
the player, it turned out that he was injured and that he refused to follow the club’s
treatment guidelines. Therefore, according to the club, the player could not play for
club. Further, the club argues that, in June 2014, the player allegedly returned to
country B and that it therefore stopped salary payments as from July 2014. Finally, the
club stated that it terminated the contract of the player, because of his nonwillingness to follow the injury treatment guidelines, his return to country B and his
absence from training sessions for more than three consecutive days.
12.
In addition, the club allegedly replied to the player, on 15 October 2014, that he had
acted in breach of the contract, due to not following the orders of the club and due
to his absence for more than three days.
13.
For these reasons, the club asks that the player’s claim be rejected.
14.
Since the alleged termination of his contract with the club in June 2014, the player
has not found employment with another club.
II.
Considerations of the DRC judge
1.
First, the Dispute Resolution Chamber (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 21 October 2014. Consequently, the
DRC judge concluded that the 2014 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 of the Procedural
Rules).
Player A, country B / Club C, country D
Page 3 of 8
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 conjunction
with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition
2015) he 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 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 (2015
edition), and considering that the present claim was lodged on 21 October 2014, the
2014 edition of said regulations (hereinafter: 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. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
First of all, the DRC judge acknowledged that the Claimant and the Respondent had
concluded an employment contract valid as from 1 December 2013 until 30 November
2014. As to the financial terms of said contract, the DRC judge took note that it had
been agreed upon between the parties that the Respondent would pay to the
Claimant a monthly salary of 150,000, payable at the end of each month.
6.
The DRC judge further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of 750,000, indicating that
the Respondent had terminated the contract on or around 30 June 2014 without
having just cause and that it had not remitted any salary payments as from July 2014.
7.
In reply to the claim lodged against it, the Respondent alleged that the Claimant
refused to follow injury treatment guidelines and that he was absent during the
training sessions for more than three consecutive days. In addition, according to the
Respondent, the Claimant returned to country B in June 2014. The Respondent holds
that the Claimant thus acted in breach of the contract.
8.
Moreover, the Respondent argued that for these reasons, it terminated the contract
based on art. 6 and art. 7 of the contract and stopped salary payments as from July
2014.
9.
In this context, the DRC judge acknowledged that the central issue in the matter at
stake was to determine whether the reasons put forward by the Respondent could
justify the termination of the contract by the Respondent in the present matter.
Player A, country B / Club C, country D
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10.
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.
11.
In continuation, the DRC judge recalled that according to the Respondent the
Claimant was absent from training sessions between 13 and 16 May 2014, which
allegation was contested by the Claimant, who further indicated that he had not
received any letter of warning from the Respondent in this regard prior to 25
September 2014. In this respect, and bearing in mind art. 12 par. 3 of the Procedural
Rules relating to the general legal principle of the burden of proof, the DRC judge
observed that there was no evidence of transmission of the alleged letters of warning
by the Respondent to the Claimant prior to 25 September 2014 on file or any other
documentation corroborating the Respondent’s allegation that the Respondent was
indeed absent between 13 May 2014 and 16 May 2014. Therefore, the DRC judge
concluded that the Respondent’s argument relating to the Claimant’s alleged absence
must be rejected.
12.
However, regardless of the question whether the Claimant was effectively absent
during training sessions between 13 May 2014 and 16 May 2014, the DRC judge was
of the firm opinion that the Respondent did, in any case, not have just cause to
prematurely terminate the employment contract with the Claimant on this basis, since
such breach could not legitimately be considered as being severe enough to justify
the termination of the contract. The DRC judge emphasised that there would have
been more lenient measures to be taken (e.g., among others, a suspension or a fine)
in order to inflict punishment due to an (alleged) absence of the Claimant during a
few days.
13.
Having said that, the DRC judge turned his attention to the Respondent’s
argumentation in connection with the player’s allegedly injury and alleged refusal to
follow the club’s instructions and concluded that such alleged circumstances, even if
substantiated with documentary evidence, could not legitimately be considered as
constituting a just cause to terminate the contract.
14.
In this regard, the DRC judge highlighted that an injury, a refusal to follow treatment
guidelines of the club or an unsatisfactory performance of a player can be no valid
reasons to terminate an employment contract and that contractual clauses providing
for a possibility to do so cannot be considered valid.
Player A, country B / Club C, country D
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15.
In line with the above, the DRC judge concluded that articles 6 and 7, which in
addition have a potestative character and are to the benefit of the Respondent only,
cannot be validly invoked as a basis for the termination of the contract.
16.
In continuation, the DRC judge turned his attention the Respondent’s statement that,
after the player returned to country B in June 2014, it ceased salary payments and
terminated the contract. The Claimant, on the other hand, stated that until the
termination of the contract, he fulfilled all his obligations under the contract. In this
respect, the DRC judge took into account that the Respondent did not submit
documentary evidence corroborating that the Claimant effectively returned to
country B before the contract was terminated by the Respondent. Further, the DRC
judge noted that the Respondent has not put the Claimant in default after his alleged
return to country B. Therefore, the DRC judge deemed that the argument of the
Respondent, in accordance with which the alleged return of the Claimant to country
B was a valid reason to terminate the contract, cannot be upheld.
17.
On account of all of the above, the DRC judge concluded that the Respondent had
no just cause to unilaterally terminate the employment contract and, therefore,
decided that the Respondent had terminated the employment contract without just
cause in June 2014.
18.
Consequently, in accordance with article 17 par. 1 of the Regulations, the
Respondent is liable to pay compensation to the Claimant for the early termination
of the employment contact without just cause.
19.
In continuation, 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.
20.
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.
21.
As a consequence, the DRC judge 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 DRC judge recalled
Player A, country B / Club C, country D
Page 6 of 8
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.
22.
The DRC judge then turned his attention to the remuneration and other benefits due
to the Claimant under the existing contract and/or the new contract. The DRC judge
deemed it important to emphasise that the wording of art. 17 par. 1 of the
Regulations allows to take into account both the existing contract and the new
contract, if any, in the calculation of the amount of compensation.
23.
In accordance with the contract signed by the Claimant and the Respondent, the
Claimant was entitled to receive remuneration amounting to 750,000 as from 1 July
2014 until 30 November 2014. Consequently, the DRC judge concluded that the
amount of 750,000 serves as the basis for the final determination of the amount of
compensation for breach of contract.
24.
In continuation, the DRC judge verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means
of which the Claimant would have been able 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.
25.
The DRC judge noted that the Claimant had remained unemployed within the period
of time between the termination of the contract and its original date of expiry, i.e.
during 5 months, and, thus, had not been able to mitigate damages.
26.
On account of all of the above-mentioned considerations and the specificities of the
case at hand, the DRC judge decided that the Respondent must pay the residual value
of the contract, i.e. 750,000 to the Claimant as compensation for breach of contract
without just cause.
27.
In addition, taking into account the Claimant’s request, the DRC judge 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. 21 October 2014,
until the date of effective payment.
*****
Player A, country B / Club C, country D
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III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is 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 750,000 plus 5% interest p.a. as of 21
October 2014 until the date of effective payment.
3.
In the event that the afore-mentioned sum plus interest is not paid 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.
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 DRC judge
of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player A, country B / Club C, country D
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