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 arisen between the parties
I.
Facts of the case
1.
On an unknown date, the Player of Country B, Player A (hereinafter: the Claimant),
and the Club of Country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract) valid as of 1 July 2014 until 30 June
2016.
2.
The contract provides for a gross monthly salary of 1,082,000 payable to the
Claimant by the 15th day of the following month.
3.
Pursuant to article V paragraph 4 of the contract, “If the Employer [the Respondent]
does not fulfill his obligations to pay undertaken in the present contract, and the
Employee’s [the Claimant’s] demand addressed in writing to [the Respondent] with
a 60 days deadline remains unsuccessful, [the Claimant] may give notice of an
immediate termination of the present contract after the 60 days period”.
4.
As per article V paragraph 6 of the contract, “the professional body including
persons listed herein shall assess [the Claimant’s] performance within 15 days
following the last league round of Autumn or Spring considering the fulfilment of
requirements included in the present contract, the human and sportsman’s attitude
and professional criteria. The members of the body: the current majority owner’s
representative, the current main coach and the current International Director or
Club Director. This body makes decision by oral majority. This body may assess [the
Claimant’s] performance. If [the Claimant] received from this body an assessment of
inadequate performance for the semi-season assessed (Autumn or Spring rounds),
than [the Respondent] may use his right of notice of termination within 15 days
after reception of such assessment with 30 days notice in connection with the
present contract. By signing this contract [the Claimant] fully accepts this possibility
of termination by [the Respondent]”.
5.
On 2 December 2014, the Respondent terminated the contract with the Claimant in
writing, due to the Claimant‘s performance assessed as “inadequate” by the
relevant professional body referred to in art. V par. 6 of the contract. According to
the termination notice, the Respondent will pay the Claimant’s salary up to 2
January 2015.
6.
On 20 February 2015, the Claimant lodged a claim before FIFA against the
Respondent, requesting the amount of EUR 48,000 as compensation corresponding
to the residual value of the contract, as well as the reimbursement of the amount of
EUR 1,800 corresponding to his flight ticket City of Country D-City of Country B and
City of Country B-City of Country E.
Player A, Country B / Club C, Country D
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7.
The Claimant alleges that the Respondent put an end to the contract without any
valid reason and without any prior discussion. The Claimant also states that he
refused to sign the relevant termination notice.
8.
In its statement of defence, the Respondent sustains that the contract provides for a
right of termination of the contract to the Respondent, as per art. V par. 6 of the
contract, but also to the Claimant, in accordance with art. V par. 4 of the contract.
The Respondent underlines that by signing the contract, both parties agreed upon
such conditions.
9.
Moreover, the Respondent holds that the relevant professional body assessed the
Claimant’s performance on 28 November 2014. In this respect, the Respondent
provided the minutes of the relevant professional body, stating that “the player
[the Claimant] did not reach the professional standards that Club C [the
Respondent] expected from him when they signed an Employment Agreement”.
Thus, the said professional body assessed the Claimant’s performance as
“inadequate in the 2014/2015 Autumn Season. The voting ratio was 3-0”.
10.
In this context, based on the aforementioned assessment, the Respondent decided
to use its right of unilateral termination of the contract on 2 December 2014 and
thus deems that such termination is legitimate. Consequently, the Respondent
considers that it has “no payment obligations towards [the Claimant]”.
11.
Upon FIFA’s request, the Claimant asserts having remained unemployed as from
December 2014.
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 20 February 2015. Consequently, the 2014 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 stake (cf. art. 21
of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), the
DRC judge is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Player of
Country B and a Club of Country D, and which value does not exceed CHF 100,000.
Player A, Country B / Club C, Country D
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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 2 of the Regulations on the Status and Transfer of Players
(editions 2014 and 2015), and considering that the present claim was lodged in
front of FIFA on 20 February 2015, 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.
In this respect, and in first instance, the DRC judge recalled that the parties had
signed an employment contract valid as of 1 July 2014 until 30 June 2016, in
accordance with which the Claimant was entitled to receive a monthly salary in the
amount of 1,082,000.
6.
The DRC judge also took due note of the termination of the contract by the
Respondent by means of a written notice dated 2 December 2014 sent to the
Claimant. In this respect, the DRC judge took due note that the reason indicated in
the said termination notice related to the player’s performance that was assessed as
“inadequate”.
7.
In continuation, the DRC judge took into account that the Claimant pointed out
that the Respondent had terminated the contract without just cause. Therefore, the
Claimant requests inter alia the payment of compensation for breach of contract.
8.
Furthermore, the DRC judge duly noted that the Respondent, for its part, sustained
having duly terminated the contract based on art. V par. 6 of the contract. The
Respondent further sustains that said clause is valid insofar as the Claimant has an
equivalent right of termination referred to in art. V par. 4 of the contract.
9.
In this context, the DRC judge acknowledged that he had to examine whether the
reasons put forward by the Respondent could justify the termination of the contract
in the present matter.
10.
In this respect, the Chamber was eager to emphasise that, according to its wellestablished jurisprudence and as a general rule, the player’s performance does not
constitute a just cause in the sense of art. 14 of the Regulations for a club to
terminate a contract. Moreover, referring to the contents of art. 18 par. 4 of the
Regulations, the Chamber emphasised that once the parties concluded an
Player A, Country B / Club C, Country D
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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.
In view of the above, the DRC judge deemed it fit to analyse the contractual clauses
allegedly providing an equivalent right of termination to the Claimant and
respectively to the Respondent. In this regard, the DRC judge underlined that
according to art. V par. 4 of the contract, the Claimant was given a 60-day deadline
to terminate in writing the contract with the Respondent, in the event the latter
does not comply with its obligation of payment; while the Respondent is entitled to
terminate the contract based on the assessment of a professional body, which is
mainly composed of club’s representatives, complying with a 30-day notice, as per
art. V par. 6 of the contract. Therefore, the DRC judge was of the firm opinion that
art. V par. 4 and par. 6 of the contract are not reciprocal and, in any case, are not of
a same nature.
12.
As a consequence, the DRC judge decided that the “inadequate” performance
invoked by the Respondent, in accordance with the assessment of the relevant
professional body, is not a valid reason to terminate the contract. Therefore, the
DRC judge concluded that the Respondent had terminated the employment
contract without just cause on 2 December 2014 and that, consequently, the
Respondent is to be held liable for the early termination of the employment contact
without just cause.
13.
Having established the above, the DRC judge focused his attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC judge decided that the Claimant is entitled to receive from the
Respondent an amount of money as compensation for breach of contract on the
basis of the relevant employment contract.
14.
First of all, 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
first of all 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.
15.
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 contained a provision by
Player A, Country B / Club C, Country D
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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.
16.
In this regard, the DRC judge observed that, considering that the contract does not
contain any compensation clause, the amount of compensation payable by the
Respondent had to be assessed in application of the parameters set out in art. 17
par. 1 of the FIFA Regulations. In this respect, the DRC judge emphasised
beforehand that each request for compensation for contractual breach has to be
assessed by the DRC judge on a case-by-case basis taking into account all specific
circumstances of the respective matter.
17.
In casu, the DRC judge took into account the remuneration due to the Claimant in
accordance with the contract and the remaining term of the contract, as well as the
claim of the Claimant. In view of all the above, the DRC judge concluded that,
bearing in mind art. 17 par. 1 of the Regulations as well as the circumstances of the
case, the amount of compensation of 14,667,000 would appear fair and
appropriate.
18.
As a consequence, and bearing in mind that the Claimant had not been able to
mitigate damages since he remained unemployed between the date of termination
of the contract by the Respondent and the expiry date of the contract, the DRC
judge concluded by deciding that the Respondent has to pay the total amount of
14,667,000 to the Claimant, as compensation for breach of contract.
19.
Reverting to the Claimant’s petition regarding the reimbursement of his flight ticket
City of Country D-City of Country B-City of Country E in the amount of EUR 1,800,
the DRC judge agreed that such claim is to be rejected due to a lack of contractual
basis.
20.
The DRC judge concluded his deliberations in the present matter by establishing
that any further claims lodged by the Claimant are rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay to the Claimant the amount of 14,667,000, within 30
days as from the date of notification of this decision.
3.
In the event that the abovementioned amount 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.
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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 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
Acting Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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