Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2015,
in the following composition:
Geoff Thompson (England), Chairman
Damir Vrbanovic (Croatia), member
Alejandro Marón (Argentina), member
Johan van Gaalen (South Africa), member
Rinaldo Martorelli (Brazil), member
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 10 February 2011, the player from country B, Player A (hereinafter: the Claimant),
and the club from country D, Club C (hereinafter: the Respondent) signed a document
named “Confirmation of your participation in Club C” (hereinafter: the contract),
valid from 1 February 2012 until 31 January 2013, by means of which the Claimant
was entitled inter alia to receive the following remuneration:
a monthly salary in the amount of 60,000;
a daily payment in the amount of 500 “per day due to the Day of training and
official match”;
bonus in the amount of USD 200 “for the player if the club wins the particular
league game (the player has to join that win game)”.
2.
The contract further established that “if you agree to the details and conditions
contained in this letter (the “Confirmation Letter”) including the Standard Terms of
Participation and the Rules and Regulations attached hereto which shall be integral
parts hereof, please sign below and initial every page and return one original copy to
the club”.
3.
The Rules and Regulations of Club C (hereinafter: the Rules and Regulations), in its
article 1, established the “Main Duties and Responsibilities”. In particular, it
established the following:
“Any athlete/coach/staff of the Club shall:
(…) 1.3 Faithfully and industriously perform your duties and obligations in a
manner that is in the best interests of the Club and in accordance with the Club’s
objectives and administration procedures at all times to the best of your skill,
ability, experience and talents;
1.4 Strictly and fully comply with any laws as well as any and all rules, regulations,
conditions, statements, instructions and recommendations given by the Club as a
result of your failure to comply and/or of your violation of any of such laws, rules,
regulations, conditions, statements, instructions and recommendations;
1.5 Fully attends and trained or coach or perform your duties in and commit to the
training and matches as designated by the Club. In the event that you fail to do so
for three (3) consecutive times without a reason acceptable to the Club. It shall be
deemed that you are in material breach of the Club’s rules and regulations
whereby the Club shall have the right to cancel your state of being an athlete/a
staff member of the club or dispose of or remove you from the Club immediately
without prior notice; (…)”
4.
Article 4.1 of the Rules and Regulations foreseen that:
“In the event that you fail to comply with any law, rule, regulation, term,
condition, statement, instruction or recommendation of the Club and/or of the
executive of the Club and/or any person designated by the Club, the Club shall be,
in its sole and absolute discretion, entitled to:
(…)
4.1.2 Immediately remove you from the Club without prior notice, and/or
4.1.3 Penalize the athlete/coach in any other ways as the Club deems appropriate.”
Player A, from country B / Club C, from country D
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5.
Article 8 of the club’s “Standard Terms” established that “The Participant hereby
represents and warrants to the Club at the present and during the Participation
Period (and throughout the possible extended period thereof). (…) (4) The Participant
shall comply with any and all criteria, standard, terms, conditions, rules and
regulations of the Club;”
6.
On 4 September 2012, the Claimant lodged a claim against the Respondent, claiming
compensation in the total amount of USD 60,000 for breach of contract, USD 30,000
corresponding to the residual amount of the contract, i.e. six monthly salaries, and
USD 30,000 for damages for specificity of sport.
7.
According to the Claimant, on 10 February 2011, he and the Respondent concluded
an employment contract valid from 1 February 2012 until 31 January 2013, by means
of which he was entitled to receive the following remuneration:
a monthly salary in the amount of USD 5,000;
a signing-on fee in the amount of USD 5,000;
a daily payment in the amount of 500 “per day due to the Day of training and
official match”;
bonus in the amount of USD 200 “for the player if the club wins the particular
league game (the player has to join that win game)”.
In this respect, the Claimant alleged that the Respondent never gave him a signed
copy of the employment contract. The Claimant provided an unsigned copy of the
said contract dated 10 February 2011.
8.
Further, the Claimant declared that on 7 August 2012, he had a meeting with the
Respondent in order to discuss the termination of the contract. The Claimant held
that the parties could not reach an agreement regarding the terms upon which the
employment contract could be terminated, but that the Respondent anyway
terminated the contract without just cause. In this regard, the Claimant affirmed
having sent a correspondence on 8 August 2012 to the Respondent, advising the
Respondent that it had no right to terminate the employment contract as well as that
he would agree on a mutual termination if the Respondent pays him the amount of
USD 15,000, equal to three monthly salaries as well as air travel for him and his family
back to country B.
9.
The Claimant further stated that the Respondent sent him several text messages
asking him, inter alia, when he wanted to leave. Accordingly, the Claimant alleged
having sent two further letters to the Respondent informing it when he would leave
as well as warning it about art. 17 of the FIFA Regulations on the Status and Transfer
of Players.
10.
Finally, the Claimant affirmed having received his last salary in July 2012.
11.
The Respondent replied, rejecting the claim of the Claimant. According to the
Respondent, the parties initially agreed to the terms of the employment contract as
indicated by the Claimant (cf. point I.7.), but the said contract was never signed due
to the fault of the Claimant. In particular, the Respondent held that the Claimant did
not show up for the meeting to sign the contract and also failed to attend training
sessions several times.
Player A, from country B / Club C, from country D
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12.
However, the Respondent held that it decided to give him a chance and that the
parties agreed to a new contract, which was signed by the parties (cf. point I.1.) and
used for the registration in the Transfer Matching System (TMS). Moreover, the
Respondent stated that the Rules and Regulations and the “Standard Terms” were
part of the contract.
13.
The Respondent referred to arts. 1.3, 1.4 and 1.5 of the Rules and Regulations as well
as to art. 8(4) of the “Standard Terms” and held that the Claimant clearly failed to
comply with his duties and with the Respondent’s rules, regulations and instructions.
In particular, the Respondent alleged that the Claimant failed to attend the training
sessions several times. Consequently, the coach decided not to allow the Claimant to
train and play.
14.
Moreover, the Respondent stated that the coach also decided to punish the Claimant
by not allowing him to play due to his bad performance, in accordance with article
4.1 of the Rules and Regulations.
15.
In this context, the Respondent held having contacted the Claimant to mutually
terminate the contract on 7 August 2012, offering thirty days of compensation and
flight tickets, but the Claimant refused, asking for three monthly salaries as
compensation.
16.
In this respect, the Respondent stated that compensation should be paid according to
the law in country D. In particular, the Respondent referred to Section 118 of the
country D Labour Protection Act, which establishes that “an employer shall pay
Severance Pay to an Employee who is terminated as follows: (1) If the Employee has
worked for an uninterrupted period of one hundred and twenty days but less than
one year, he or she shall be entitled to receive payment of not less than his or her last
rate of Wages for thirty days”.
17.
Finally, the Respondent alleged having paid for the flight tickets to country B for the
entire family of the Claimant in the amount of 45,200 and insisted that it did not pay
compensation only because the Claimant refused to negotiate.
18.
The Claimant presented his replica, denying the arguments of the Respondent and
affirming that bad performance is not a just cause to terminate an employment
relationship. Moreover, the Claimant held that the Respondent could take other
measures before terminating the contract.
19.
In addition, the Claimant insisted that the monthly salary was in the amount of
USD 5,000. In this respect, the Claimant submitted a document allegedly provided by
the Respondent which indicates that salary was paid in the amount of 150,000.
20.
The Respondent submitted its final comments insisting in the arguments already
raised in its response to the claim.
21.
The Claimant informed FIFA that he remained unemployed between August 2012 and
31 January 2013.
Player A, from country B / Club C, from country D
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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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 4 September
2012. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; 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 in combination with art. 22
lit. b of the Regulations on the Status and Transfer of Players (edition 2015) 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 2 of the Regulations on the Status and Transfer of Players (edition 2015),
and considering that the present claim was lodged on 4 September 2012, the 2010
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.
The DRC started by taking note that the Claimant lodged a claim against the
Respondent, claiming compensation for breach of contract. In particular, the
Chamber took note that, according to the Claimant, on 10 February 2011, he and the
Respondent concluded a contract valid from 1 February 2012 until 31 January 2013,
by means of which he was entitled to receive inter alia a monthly salary in the
amount of USD 5,000.
6.
The DRC furthermore took due note of the fact that the Respondent, on its part, had
categorically denied the conclusion of the employment contract with the contractual
terms indicated by the Claimant. The Respondent accepted having negotiated with
the Claimant such terms, but held that the parties finally signed the contract with a
monthly salary of 60,000, which was duly registered in the TMS for the transfer of the
Claimant.
7.
In view of this dissent between the parties in respect of the basic question as to which
contract should be considered as the valid one, the members of the Chamber firstly
referred to art. 12 par. 3 of the Procedural Rules, according to which any party
Player A, from country B / Club C, from country D
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claiming a right on the basis of an alleged fact shall carry the respective burden of
proof. The application of the said principle in the present matter led the members of
the Dispute Resolution Chamber to conclude that, it was for to the Claimant to prove
that the employment contract, on the basis of which he claims compensation for
breach of contract from the Respondent, indeed existed.
8.
Having stated the above, the DRC recalled that the Claimant maintained that he
never received a duly signed copy by both parties of the employment contract he
asserts having signed with the Respondent.
9.
Firstly, the DRC deemed it important to highlight that, in order for an employment
contract to be considered as valid and binding, it must bear the signature of both the
employer and the employee. In this respect, the DRC observed that the Claimant was
unable to provide the Chamber with a copy of the employment contract duly signed
by both the Claimant and the Respondent.
10.
On the contrary, the DRC highlighted that the Respondent presented a copy of a
different contract duly signed by both parties. Moreover, the members of the DRC
took into account that this contract was also registered in the TMS.
11.
Further, the Chamber stressed that one apparent payment slip indicating a salary of
150,000 was not sufficient evidence to conclude that the parties had agreed upon a
monthly salary of USD 5,000.
12.
In conclusion, the Chamber decided that the contract, provided by the Respondent,
was the valid contract and that it should be considered as the employment contract at
the basis of the present dispute.
13.
In continuation, the members of the DRC recalled that the Claimant lodged a claim
against the club for breach of contract, asserting that the Respondent had terminated
the contract without just cause.
14.
On the other hand, the Chamber observed that the Respondent accepted having
contacted the Claimant to terminate the contract. Moreover, the DRC took note that
the Respondent held having punished the Claimant by not allowing him to play due
to alleged bad performance. Finally, the Chamber also took note of the argument of
the Respondent that the Claimant failed to attend training sessions several times.
15.
In light of the position of the parties and the documentary evidence available, the
members of the DRC established that it remained undisputed that, in August 2012,
the club terminated the contract with the Claimant on the basis of his alleged bad
performance as well as the fact that he, according to the club, missed training
sessions.
16.
However, with reference to art. 12 par. 3 of the Procedural Rules, the Chamber
observed that the Respondent did not discharge its burden of proof, considering that
it did not provide any evidence that the Claimant indeed failed to attend the
trainings.
Player A, from country B / Club C, from country D
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17.
Moreover, the DRC emphasised that, according to the long-standing jurisprudence of
the Dispute Resolution Chamber, bad performance is not considered a just cause to
terminate an employment contract.
18.
In this framework, 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 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.
19.
On account of the above, the Chamber decided that the Respondent had no just
cause to unilaterally terminate the contract with the Claimant and, consequently, the
Respondent is to be held liable for the early termination of the employment contact
without just cause.
20.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the contract without just cause by the
Respondent.
21.
First of all, the members of the Chamber concurred that there were no outstanding
salaries at the moment the contract was terminated, considering that the Claimant
recognized having received the monthly salaries until July 2012.
22.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of
the Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract on the basis of the relevant employment
contract.
23.
In this context, the Chamber outlined that, in accordance with said provision, 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.
24.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by means of
which the parties had beforehand agreed upon a compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
Player A, from country B / Club C, from country D
Page 7 of 9
25.
Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account the remuneration due
to the Claimant in accordance with the contract as well as the time remaining on the
same contract, along with the professional situation of the Claimant after the early
termination occurred. In this respect, the Chamber pointed out that at the time of the
termination of the employment contract in August 2012, the contract would still run
until 31 January 2013, i.e. for a period of six months. Therefore, considering the
financial terms of the contract, the Claimant would still be entitled to receive, for the
period between August 2012 until 31 January 2013, six monthly salaries in the
amount of 60,000 each, amounting to 360,000. In addition, for the relevant period,
the Claimant would also be entitled to receive a daily allowance of 500 for 184 days
(31 days of August 2012, 30 days of September 2012, 31 days of October 2012, 30 days
of November 2012, 31 days of December 2012 and 31 days of January 2013),
amounting to 92,000.
26.
Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early termination by
the Respondent until the regular expiry of the contract amounts to 452,000 and that
such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
27.
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.
28.
In this respect, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute the Claimant had remained
unemployed during the contractual period.
29.
In view of all of the above, the Chamber decided that the Respondent must pay the
amount of 452,000 to the Claimant as compensation for breach of contract without
just case, which is considered by the Chamber to be a reasonable and justified
amount as compensation.
30.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged 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 compensation for breach of
contract in the amount of 452,000, within 30 days as from the date of notification
of this decision.
Player A, from country B / Club C, from country D
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3.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. is not paid by the Respondent within the stated time limit,
interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time
limit and 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.
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.
*****
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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS Directives
Player A, from country B / Club C, from country D
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