Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 27 August 2012,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player M, from country S
as Claimant
against the club,
Club S, from country A
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 July 2011, the player M, from country S (hereinafter: player or Claimant), and
Club S, from country A (hereinafter: club or Respondent), signed an employment
contract valid as from the date of its signature until 30 May 2012 (hereinafter: the
contract).
2.
According to the contract, the club agreed to pay the player a signing-on fee of EUR
5,000 and a net monthly salary of EUR 3,000 for the duration of the contract.
3.
Moreover, art. 3 of the contract stated that “if the club wins the Championship title,
the player will be entitled to an extra reward in the following way: (…) 20 % if the
player will be active for 10-30% of the playtime”, whilst art. 4 of the contract states
that “if the club wins the Republic Cup, the player will be entitled to an extra
reward in the following way: (…) 20 % if the player will be active for 10-30% of
total season”.
4.
Furthermore, the contract stated that “the club will provide to the player with full
accommodation, apartment and food”.
5.
On 16 December 2011, the player filed a claim before FIFA against the club for
breach of contract without just cause, requesting from the latter the total payment
of EUR 33,000 net, plus 5% interest p.a. as from the date in which the breach
occurred.
6.
In compliance with art. 3 and art. 4 of the contract and in the potential event that
the club won the Championship and/or the Republic Cup during the 2011/2012
season, the player requested for “an extra reward of at least 20%”.
7.
Equally, the player, in reference to the “well-established jurisprudence” regarding
the “specificity of sports”, requested to be awarded an extra six months of salary as
compensation for the alleged breach of contract committed by the club.
8.
In addition, the player requested for sporting sanctions to be applied against the
club, whilst also considering the club liable to endure all procedural costs related to
the matter at hand.
9.
According to the player, at the beginning of August 2011, after a medical test
conducted by the club, he was diagnosed with asthma.
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10.
Subsequently, the player indicated that, on 12 August 2011, the club provided the
Football Association of country A with a letter that stated “F.C. “Club S” permits to
the football player M to play actively with other clubs both inside the country and
abroad, after Club-Player and Player-Club agreements. The club and the player have
no economical and financial obligations towards one another”.
11.
In view of the above, the player sustains that the club breached the contract by not
paying the salary for the month of July and by informing the Football Association of
country A that a “Club-Player and Player-Club agreements” had been reached. The
player claims to have never signed any document regarding a mutual agreement to
terminate the employment contract.
12.
In addition, the player sustains that regardless whether he suffers from asthma or
not, the club should have conducted a medical test prior to the signing of the
employment contract, whilst underlining that the validity of a contract may not be
made subject to a successful medical examination.
13.
In line with the above-mentioned facts, the player considers that the club has
committed a clear breach of contract without just cause on 12 August 2011 and
should thus be condemned to pay compensation.
14.
In reply, the club alleges that during the contract negotiation process with the
player, the squad was in pre-season training in country B, stating “it was difficult for
us to do health examination”. The club states that the player did not inform the
club of any on-going health problems, and that during the first medical
examination carried out in country B, the player´s problem was not diagnosed.
15.
Furthermore, upon the squad´s return home, the player apparently only
participated in forty five minutes of the club´s first European qualification game.
Subsequently, and after the club´s European elimination, the player returned home
for three weeks. The club indicated that it was not until his return and subsequent
in depth medical examination, that the player´s asthmatic allergy was diagnosed.
16.
Moreover, the club claims to have paid the player´s corresponding signing-on fee
whilst also underlining that once in possession of the medical results and upon the
player´s request, the parties agreed to “solve the contract in accordance with each
other”, meaning that no further economical nor financial obligations were due.
17.
Finally, in reply to FIFA’s request, the player indicated that as from 20 August 2011
until 30 October 2011 he was registered with Club J, a non-professional football
club, whilst as of 31 October 2011 until 13 May 2012 he was subsequently registered
with Club P, another non-professional football club. The player claims to have not
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received any remuneration as he was only registered with both clubs i.e. without a
contract.
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 16 December 2011, thus after 1 July 2008. 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. article 21 par. 2 and 3 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
2010) he is competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a country S
player and a country A club.
3. Furthermore, the DRC judge analysed which edition of the Regulations on the Status
and Transfer of Players 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 (edition 2010) and considering
that the present claim was lodged on 16 December 2011, the 2010 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable as to the substance of the matter at hand.
4. In continuation, and entering into the substance of the matter, the DRC judge
started by acknowledging the above-mentioned facts and all further documentation
contained in the file. In particular, he took note that on 1 July 2011, an employment
contract was concluded between the parties valid as from the date of its signature
until 30 May 2012 in which it was agreed that the Claimant would receive a net
monthly salary of EUR 3,000 for the duration of the contract. Furthermore, the DRC
judge acknowledged that the Claimant argued that the Respondent had unilaterally
terminated the employment contract with the Claimant on 12 August 2011, at the
moment when the Respondent had provided the Football Association of country A
with a letter that stated “F.C. “Club S” permits to the football player M to play
actively with other clubs both inside the country and abroad, after Club-Player and
Player-Club agreements. The club and the player have no economical and financial
obligations towards one another”.
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5. In this regard, the DRC judge took due note that, on the one hand, the Claimant
argued that the Respondent had unilaterally terminated the contractual
relationship without just cause on 12 August 2011 and should be condemned to pay
compensation in the amount of EUR 33,000. On the other hand, the DRC judge took
note that the Respondent was of the opinion that the relevant employment
contract had been terminated with just cause, in particular, after an in depth
medical examination, in which the player was diagnosed with an asthmatic allergy.
According to the Respondent, the Claimant had failed to inform them of his ongoing health issue, which during pre-season after a first medical examination was
not diagnosed.
6. On account of the above, the DRC judge stated that he first had to analyse whether
or not the Respondent had terminated the contract with or without just cause, and
then to determine whether a party is accountable for outstanding payments and/or
compensation.
7. In this respect, the DRC judge took due note of the argument raised by the
Respondent that the parties “had solved the contract in accordance with each
other” and that “the club and the player had no economical and financial
obligation towards each other”. The DRC judge referred to art. 12 par. 3 of the
Procedural Rules which stipulates that any party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. In this context, the DRC judge
turned to the documentation on file and emphasised that the Respondent had not
submitted any documentary evidence from which it could be established that the
parties had indeed agreed upon an early termination of the contract. In fact, the
only document referring to such an agreement was the aforementioned letter
dated 12 August 2011, which was submitted by the Claimant during the present
proceeding, however, said letter was only signed by the Respondent and can,
therefore, not be considered as a document by means of which the parties had
indeed agreed upon the early termination of the contract. In view of all the
foregoing, the DRC judge decided to reject this part of the Respondent´s defense.
8. Subsequently, the DRC judge turned his attention to the argument of the
Respondent that it had terminated the employment contract on the basis of the
outcome of the medical examination carried out in the beginning of August 2011
which showed that that the Claimant suffered from asthma.
9. The DRC judge recalled once more the sequence of the facts in the present matter:
On 1 July 2011, the parties concluded the employment contract and subsequently,
the Claimant participated in pre-season training and in a European qualification
game with the Respondent. Eventually, in the beginning of August 2011, an in
depth medical examination was carried out with the Claimant, after which he was
diagnosed with asthma.
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10.
In this context, the DRC judge referred to art. 18 par. 4 of the Regulations which
stipulates that “the validity of a contract may not be made subject to a positive
medical examination and/or the granting of a work permit”.
11.
The DRC judge outlined that art. 18 par. 4 of the Regulations implies that medical
examinations shall be made by the potential new club prior to the signing of the
employment contract. A club carrying out the pertinent tests only after having
signed the employment contract does so at its own risk. What is more, the DRC
judge stressed that the obligation imposed on the clubs to conduct the medical
examinations of players prior to the signing of the employment contract was of
mandatory nature which could neither be contractually amended nor circumvented
in any other way. As a result, the DRC judge concluded that the arguments raised by
the Respondent should be rejected and that the employment contract in question
had been validly concluded, meaning that it should have been properly executed.
12.
Taking into consideration all of the above, the DRC judge decided that the
Respondent had terminated the employment contract unilaterally without just
cause on 12 August 2011 and that, consequently, the Respondent is to be held liable
for the early termination of the employment contact without just cause.
13.
Having established that the Respondent is to be held liable for the early termination
of the employment contract without just cause, the DRC judge focussed his
attention on the consequences of such termination.
14.
First of all, taking into account the documentation remitted by the Claimant to
substantiate his claim and the fact that the employment contract was considered
terminated as of 12 August 2011, the DRC judge decided that the Respondent is
liable to pay to the Claimant the amount of EUR 3,000 relating to the Claimant’s
salary for July 2011, which was outstanding at the moment when the Respondent
unilaterally terminated the employment contract without just cause.
15.
In continuation, 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 on
the basis of the relevant employment contract.
16.
In this respect, the DRC judge focussed 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
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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.
17.
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
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.
18.
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
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.
19.
0 due to the Claimant in accordance with the contract as well as the time remaining
on the same contract, as well as the professional situation of the Claimant after the
early termination occurred.
20.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract until
30 May 2012. Consequently, the DRC judge concluded that the amount of EUR
30,000 corresponding to the player’s monthly salaries falling due as from the date
of termination, i.e. August 2011, until the end of the contract, i.e. May 2012, serves
as the basis for the final determination of the amount of compensation for breach
of contract.
21.
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.
22.
In this respect and bearing in mind that the Claimant had not been able to sign an
employment contract with another club, the DRC judge decided that the entire
remaining value of the contract, corresponding to the player’s remuneration as
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from the date of termination of the employment contract until 30 May 2012,
amounting to EUR 30,000, was to be considered justified as the amount payable as
compensation for breach of contract.
23.
For all the above reasons, the DRC judge decided to partially accept the Claimant’s
claim and that the Respondent must pay to the Claimant the amount of EUR 3,000
as outstanding remuneration, plus 5% interest p.a on said amount as of 1 August
2011 and EUR 30,000 as compensation, plus interest of 5% p.a. on said amount as of
27 August 2012.
24.
The DRC judge concluded the deliberations in the present matter by establishing
that any further claim of the Claimant is rejected.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player M, is partially accepted.
2.
The Respondent, Club S, 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
3,000 plus 5% interest p.a. as of 1 August 2011 until the date of effective payment.
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 amounting to EUR
30,000 plus 5% interest p.a. as of 27 August 2012 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
time limits, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
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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 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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
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