Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 July 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Johan van Gaalen (South Africa), member
Theodore Giannikos (Greece), member
on the claim presented by the player,
X, from country A
as Claimant
against the club,
Club Y, from country S
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 15 August 2010, the player X from country A (hereinafter: the Claimant) and
the Club Y from country S (hereinafter: the Respondent) concluded an
employment contract (hereinafter: the contract) valid as from the date of
signature until 14 August 2013.
2.
According to the contract, the Claimant was entitled to receive as remuneration
from the Respondent, as follows:
a. “…a monthly salary of /5000/ Three thousand U.S. dollars for the first
season”;
b. “…/5500/ Three thousand five hundred U.S. dollars at the beginning of
the second season”;
c. “…/7000/ U.S. dollars at the beginning of the third season”.
3.
Moreover, clause 5A of the contract provided that the Claimant should “..exert
his outmost efforts and capabilities in all training matches in which he is asked
to participate at the time and place specified by the club and he is not allowed
to be absent from the activities or training of the club for more than (three
training sessions) without the consent of [the Respondent] or the specialized
staff (the Supervisor of the game & the team’s medical staff) under penalty of
cancelling the contract and demanding from [the Claimant] a penalty of 5000
U.S. dollars only”.
4.
Likewise, clause 5G of the contract stipulated that “[the Claimant] is not allowed
to offend the administrative, technical, and medical staff or any player of [the
Respondent] or other teams within the framework of the matches or practice
play under the threat of the penalty of a 30% deduction of his monthly salary
and [the Respondent] is entitled to rescind the contract and demand
compensation as indicated in Article /5/ in case of repeated offence”.
5.
In addition, clause 9 stated that “In case of the contract termination or its
rescinding by [the Respondent] for any reason whatsoever and for no probable
cause or arbitrarily, [the Respondent] is committed to pay all salaries due to [the
Claimant] up to the date of the contract termination regardless of their total
amount and [the Respondent] is entitled to list [the Claimant] on the list of
transfers…”.
6.
On 17 January 2011, the Claimant lodged a claim against the Respondent in
front of FIFA requesting the payment of USD 210,000 and sporting sanctions to
be imposed on the latter.
7.
In particular, the Claimant explained that on 26 August 2010, before a friendly
match, the Respondent’s coach told him that he would not participate in that
match since his ITC had not arrived.
Player X, from country A / Club Y, from country S
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8.
The Claimant further argued that on 27 August 2010, he was told by the
“Administrative of the first football team”, and a member of the Respondent’s
Board of Directors, that the latter had terminated his contract since it could not
register him to participate in the Football Association of country A Cup due to
the fact that his ITC had arrived after the Football Association of country A
registration period ended. In this respect, the Claimant alleges that after this
incident, he continued to attend trainings and that, on 1 September 2010, the
Respondent requested him to leave its premises.
9.
In continuation, the Claimant asserts that on 2 September 2010, he submitted a
complaint against the Respondent in front of the “General Sports Federation of
country S”, to which he received no answer.
10.
The Claimant further argues that on 7 September 2010 and 19 September 2010,
he remitted the same complaint to the “Professional Committee of the Football
Association of country S”, requesting for the latter to act as a mediator between
the parties, however also to no avail.
11.
Furthermore, the Claimant stresses that on 26 September 2010 and 3 October
2010, two meetings took place with the Respondent and the Football
Association of country S, but that no amicable settlement was reached.
According to the Claimant, on 4 October 2010, the Respondent provided him
with a letter dated 28 September 2010, in which the latter informed him that it
was terminating the employment contract based on clause 5G of the contract
and that it would pay him his salaries due until that moment in accordance with
clause 9 of the contract.
12.
On 5 October 2010, the Claimant remitted once again his complaint to the
“Professional Committee of the Football Association of country S” and informed
the latter that he will leave country S. In this respect, the Claimant alleges that
he left country S on 6 October 2010.
13.
In conclusion, the Claimant argues that the Respondent had no just cause to
terminate the employment contract and thus, it must pay him compensation for
breach of contract.
14.
In its reply to the claim, the Respondent held that “due to misbehavior of [the
Claimant], and according to Article (5) Para. (A) of the contract, the player’s
contract was revoked on 28 September 2010, when we received a report from
the technical and administrative staff about the misbehavior of the player and
for assaulting the technical staff of the team because of his replacement on one
of the friendly matches…”. The Respondent argues that it sent this report to the
Football Association of country S.
Player X, from country A / Club Y, from country S
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15.
In this respect, the Respondent enclosed the termination letter dated 28
September 2010, which “was notified officially to the player on 4/10/2010” and
which reads “Due to the poor behavior of the player X, from country A, and
according to the article /5/ paragraph /g/ from the player’s contract with the
club, the management of Club Y, from country S tell the player mentioned annul
of contract”.
16.
Furthermore, the Respondent enclosed a document titled “Administrative
Decision” dated 28 August 2010 issued by the Respondent itself, where it is
stated that the its Board of Directors decided to “terminate the contract with
[the Claimant] due to his misbehavior and because of assaulting more than once
the technical and administrative staff (…) in addition to his absence from the
exercises, according to this report submitted by the Managing Director of the
team”.
17.
In addition, the Respondent argues that in accordance with clause 5A of the
contract, it had the right to terminate the contract “on condition that all his due
payments shall be paid…”. In this regard, the Respondent claims that it “invited
the player to cash him all his due payments”, invitation which, according to the
latter, was refused by the Claimant.
18.
Finally, the Respondent asked to be compensated by the Claimant with the
amount of USD 5,000 in accordance with clause 5A and 5G of the contract.
19.
In his replica, the Claimant rejected all the allegations of the Respondent,
specifically his supposed misbehavior and the alleged assault to its staff.
20.
The Claimant argues that the document titled “Administrative Decision” dated
28 August 2010 was never notified to him and that it only came to his
knowledge with the reply to the claim.
21.
In reference to the termination letter dated 28 September 2010, the Claimant
argues that it merely refers to his “poor behavior”, an assertion which is of a
general nature, vague and therefore it cannot be considered as a just cause to
terminate the contract. What is more, he argues that the Respondent did not
submit any proof of such alleged misbehavior.
22.
On 4 July 2011, FIFA requested the Football Association of S to inform it the
exact date on which the Claimant had lodged his complaint in front of the
“Football Association Committee of country S” and the status of the claim. The
above-mentioned correspondence was answered only by the Respondent as
follows “the claim paper on Tuesday 07/09/2010” and that the current status was
“the club Manager deal with Mr F (Football Federation of country S) to pay an
amount (10000 $) to [the Claimant]”.
Player X, from country A / Club Y, from country S
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23.
24.
In a further letter, the Respondent indicated that “We would like to remember
you that the Football Federation of country S to pay an amount (10000$) to [the
Claimant]”.
Having been asked by FIFA, the Claimant indicated that he had not signed a new
employment contract with any other club. However, according to the
information contained in the Transfer Matching System (TMS), the Claimant
signed a new employment contract with the Club M, from country U valid as
from 1 April 2012 until 31 July 2012, according to which, he was entitled to
receive “A gross monthly salary equivalent to the professional football players’
minimum wage of the category (divisional) in which the Club is at the moment
in which [the salary] is due…”.
25.
Despite having been asked to do so, the Respondent did not submit its final
comments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
DRC or the Chamber) analysed whether it was competent to deal with the
matter at stake. In this respect, it took note that the present matter was
submitted to FIFA on 17 January 2011. Consequently, the 2008 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 2008 and 2012 edition 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 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), 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 and a club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2010 and 2012), and considering that the claim was
lodged in front of FIFA on 17 January 2011, the 2010 edition of the
aforementioned regulations (hereinafter: the 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, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file. However, the Chamber emphasised that in the following
Player X, from country A / Club Y, from country S
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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 acknowledged that, on 15 August 2010,
the Claimant and the Respondent concluded an employment contract valid as
from 15 August 2010 until 14 August 2013. As to the financial terms of the
contract, the Chamber took note that it had been agreed upon between the
parties that the Respondent would remunerate the Claimant as follows:
a. “…a monthly salary of /5000/ Three thousand U.S. dollars for the first
season”;
b. “…/5500/ Three thousand five hundred U.S. dollars at the beginning of
the second season”;
c. “…/7000/ U.S. dollars at the beginning of the third season”.
6.
Moreover, the Chamber noticed that it was undisputed by the parties that, by
means of a letter dated 28 September 2010, the aforementioned employment
contract was unilaterally terminated by the Respondent on 4 October 2010.
7.
The members of the Chamber then reviewed the claim of the Claimant, who
maintains that the statements regarding his alleged misbehavior and assault to
the Respondent’s staff invoked by the latter are false and that the real reason of
the termination of the contract by the Respondent was due to the fact that his
ITC did not arrive before the Football Federation of country A’s Cup registration
period ended. In any case, the Claimant argues that none of the abovementioned reasons constitute a just cause to terminate the employment
contract. Consequently, the Claimant asks to be awarded with compensation for
breach of contract from the Respondent.
8.
In continuation, the Chamber turned its attention to the arguments presented
by the Respondent and acknowledged that, according to the latter, the Claimant
breached the employment contract, in particular its clause 5G, by “assaulting the
technical staff of the team because of his replacement on one of the friendly
matches…” and that the above-mentioned incident was documented by a
decision of its Board of Directors dated 28 August 2010.
9.
Furthermore, the DRC noted that the Respondent asked to be compensated with
USD 5,000, based on clause 5A of the contract.
10.
In view of the above-mentioned dissenting views of the parties, the DRC turned
its attention to the fundamental question as to whether the Respondent had
just cause to unilaterally terminate the contract on 4 October 2010.
11.
In this context, the members of the Chamber reverted firstly to the Respondent’s
arguments contained in the termination letter dated 28 September 2010, which
are reiterated in the Respondent’s reply to the claim, and noted that in said
Player X, from country A / Club Y, from country S
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letter, the Respondent held that the Claimant’s behavior was in contravention
with his contractual duties while referring to article 5G of the employment
contract.
12.
Having said this, the DRC wished to recall the general legal principle set forth in
art. 12 par. 3 of the Procedural Rules and which reads that any party claiming a
right on the basis of an alleged fact shall carry the burden of proof.
13.
In this regard, and after a thorough analysis of the documentation available on
file, the members of the Chamber found that the Respondent had not submitted
any documentary evidence demonstrating the Claimant’s alleged misconduct
referred to by the former. What is more, the Chamber 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 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 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 respect of the decision of the Respondent’s Board of Directors dated 28
August 2010, the members of the Chamber wished to highlight that said
decision is rendered by the Respondent itself and is not supported by any
additional documentation whatsoever. Consequently, the Chamber deemed that
the above-mentioned decision of the Respondent’s Board of Directors is unfit to
actually prove the alleged misbehavior of the Claimant. What is more, the
members of the Chamber noted that said decision was not signed by the
Claimant and the latter claims not having been aware of it until the reply to the
claim.
17.
On account of the above, the Chamber unanimously decided, while rejecting the
Respondent’s counterclaim, that the Respondent had no just cause to
unilaterally terminate the employment relationship between the parties and,
therefore, concluded that the Respondent had terminated the employment
contract without just cause on 4 October 2010 and that, consequently, the
Player X, from country A / Club Y, from country S
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Respondent is to be held liable for the early termination of the employment
contact without just cause.
18.
Bearing in mind the previous considerations, the Chamber went on to deal with
the consequences of the early termination of the employment contract without
just cause by the Respondent.
19.
At this point and for the sake of completeness, the members of the Chamber
wished to emphasise that despite there is a discrepancy in the contract regarding
the Claimant’s salary i.e. the amount established in numbers and the one in
letters, the Respondent did not contest the amounts requested by the Claimant
and thus, the Chamber decided that the amount established in numbers is the
one to be taken into consideration.
20.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract in accordance with the general
legal principle of pacta sunt servanda. Consequently, the Chamber decided that
the Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination i.e. USD 5,000 as per his salary of
September 2010.
21.
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 in addition to any outstanding salaries on
the basis of the relevant employment contract.
22.
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, and
depending on whether the contractual breach falls within the protected period.
23.
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.
24.
Having recalled the aforementioned, 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 employment
contract as well as the time remaining on the same contract, along with the
Player X, from country A / Club Y, from country S
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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
contract, this would run for another thirty five months. Consequently, the
Chamber concluded that the remaining value of the contract as from its early
termination by the Claimant until its regular expiry amounts to USD 205,000, an
amount which shall serve as the basis for the final determination of the amount
of compensation for breach of contract.
25.
In continuation, the Chamber remarked that, conversely to the statement of the
Claimant, according to the TMS, the Claimant had concluded a new employment
contract with Club M, from country U valid as from 1 April 2012 until July 2012
according to which, he was entitled to receive “A gross monthly salary
equivalent to the professional football players’ minimum wage of the category
(divisional) in which the Club is at the moment in which [the salary] is due”.
Consequently, in accordance with the constant practice of the Dispute
Resolution Chamber and the general obligation of the Claimant to mitigate his
damages, the remuneration under the new employment contract shall be taken
into account in the calculation of the amount of compensation for breach of
contract.
26.
In this regard and in view of the fact that the Claimant failed to provide the
Chamber with the above-mentioned contract, the Claimant decided that the
period for which the Claimant is entitled to receive compensation should only
run until the date on which the Claimant signed the new employment contract
i.e. 1 April 2012.
27.
In view of all of the above, the Chamber decided that the Respondent must pay
the amount of USD 99,000 to the Claimant as compensation for breach of
contract, which is considered by the Chamber to be a reasonable and justified
amount.
28.
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 X, is partially accepted.
2.
The Respondent, Club Y, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of USD 5,000.
3.
The Respondent 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 USD 99,000.
Player X, from country A / Club Y, from country S
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4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. are not paid by the Respondent within the
stated time limits, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limits and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
6.
Any further claim lodged by the Claimant, is rejected.
*****
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 X, from country A / Club Y, from country S
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