Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 August 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theo van Seggelen (Netherlands), member
Taku Nomiya (Japan), member
on the claim presented by the player,
Player F, from country A
as Claimant / Counter-Respondent
against the club,
Club O, from country C
as Respondent / Counter-Claimant
with the club,
Club L, from country S
as Intervening Party
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 24 June 2008, Player F, from country A (hereinafter: player or
Claimant/Counter-Respondent) and Club O, from country C (hereinafter: club or
Respondent/Counter-Claimant) signed an employment contract valid as from the
date of signature until 31 May 2011 (hereinafter: June 2008 contract).
2.
In accordance with the June 2008 contract, the player was entitled to receive inter
alia the following remuneration:
a. EUR 100,000 net in 12 monthly instalments of EUR 8,333 each as from 30
June 2009;
b. EUR 100,000 net in 12 monthly instalments of EUR 8,333 each as from 30
June 2010;
c. Accommodation in the monthly amount of EUR 700 max.
3.
The June 2008 contract further includes a 60 days’ grace period for the club to pay
the player’s remuneration.
4.
On 31 January 2010, the club and the player signed a “mutual termination
contract”, in accordance with which the June 2008 contract was terminated and
the club acknowledged that it does not owe any money as salary, bonus,
compensation, or anything else, except for the amount of EUR 20,833 which
would be paid to the player “each month until 31 May 2010”.
5.
On the same day, the parties signed an “Agreement” relating to the termination
of the June 2008 contract by mutual consent, in accordance with which the June
2008 contract was terminated in order to facilitate the loan of the player to Club
A until 31 May 2010.
6.
According to this agreement, after expiry of the player’s contract with Club A, the
player will return to the club with a new contract starting on 1 June 2010 and
valid until 31 May 2011, with the same terms and conditions as the conditions
included in the June 2008 contract.
7.
This agreement further specifies that the club will pay the amount specified under
number 3 of the aforementioned mutual termination contract. In addition, this
agreement stipulates that the player’s salary for December 2009 and January 2010
in the amount of “2 x 19,833” will be paid by the club to the player until the end
of February 2010.
Player F, from country A / Club O, from country C / Club L, from country S
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8.
On 1 February 2010, the player and Club A, signed an employment contract valid
until 30 May 2010, in accordance with which the player was entitled to receive
from Club A EUR 500 per month as of 28 February 2010 until 31 May 2010.
9.
The player and the club signed another employment contract, dated 1 June 2010,
valid as from 1 June 2010 until 31 May 2011, in accordance with which the player
was to receive EUR 100,000 net in 12 monthly instalments of EUR 8,333 each,
payable as from 30 June 2010.
10.
In accordance with this employment contract, the player was to be present in
country C in order to start his employment on 1 June 2010.
11.
On 3 February 2010, the player and his agent allegedly terminated their
cooperation with immediate effect.
12.
On 20 May 2010, this agent received a fax from the club in which it informed the
agent that the player was to present himself for training on 1 June 2010.
13.
On 2 June 2010, said player’s agent received another fax from the club stating
that the player had not appeared at training and insisting that the player presents
himself on 4 June 2010 at 9 a.m. the latest.
14.
By fax dated 4 June 2010 addressed to the same player’s agent, the club
terminated the employment contract due to the player’s absence in spite of its
warnings.
15.
On 7 August 2010, the player signed an employment contract with Club L, from
country S, valid as from 19 August 2010 until 31 May 2011, in accordance with
which the player was to receive a monthly remuneration of currency of country S
3,800.
Claim of the player
16.
On 26 October 2010, with a subsequent amendment on 6 March 2011, the player
lodged a petition against the club in front of FIFA claiming payment of
outstanding remuneration and compensation for breach of contract without just
cause in the total amount of EUR 145,466, which was detailed as follows:
a. EUR 16,666 net (2 X EUR 8,333) for outstanding salaries for April and May
2010;
b. EUR 1,400 (2 x EUR 700) for outstanding rental payments for April and
May 2010;
c. EUR 100,000 remuneration for the 2010-11 season;
d. EUR 8,400 for rental payments during the 2010-11 season;
Player F, from country A / Club O, from country C / Club L, from country S
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17.
e. EUR 12,000 compensation for expenses due to unexpected move;
f. EUR 7,000 compensation for his representative’s fees.
He further asks that sporting sanctions be imposed on the club.
18.
The player explains that as early as in January 2009 the club demonstrated that it
was not any longer interested in his services and tried to pressure him in agreeing
to put an end to their contractual relation, which pressure allegedly was increased
in July 2009. The club further allegedly was always in two months’ delay of the
payment of his salary without valid reason.
19.
In January 2010, it was agreed that the player would transfer on a loan basis to
Club A until 31 May 2010, after which time the player was to return to the club.
According to the player, this was under the condition that the club would pay the
salaries that were outstanding at that time and that the club would continue to
pay his salary during his loan at Club A.
20.
Referring to the aforementioned notices from the club addressed to the agent,
the player alleges that, prior to receipt of the club’s fax of 20 May 2010, the agent
had already informed the club that he was no longer representing the player.
21.
The player alleges that he was informed by the agent of the contract termination
on 4 June 2010, at which time he was still on vacation with the club’s approval,
who had informed him that training would start on 9 June 2010. Furthermore, the
player points out that he never received any notice from the club informing him
that the starting date of training had changed to 1 June 2010. In addition, on 4
June 2010, the player authorised the agent again to act on his behalf in this
matter.
22.
According to the player, at the time of the termination of the contract by the
club, his salaries for April and May 2010 were yet to be paid by the club.
Club’s reply to the claim and counterclaim
23.
The club rejects all of the player’s allegations and submits that it terminated the
contract with just cause.
24.
As regards the player’s statements relating to the period of time prior to his
transfer on a loan basis, the club holds that it paid the player’s remuneration in
accordance with the contractual 60 days’ grace period. The club further submits
that the player had not shown professional behaviour.
Player F, from country A / Club O, from country C / Club L, from country S
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25.
The club asserts that the employment contract dated 1 June 2010 and the
termination agreement relating to the June 2008 contract were simultaneously
signed. Referring to the pertinent contractual clause in the employment contract
dated 1 June 2010, the club asserts that the player was well aware of the fact that
he should have returned to the club on 1 June 2010.
26.
With respect to its correspondence sent to the player via his agent following the
expiry of the player’s loan period, including the notice of termination, the club
points out that it never received any information that the player had ended his
cooperation with the agent or about a change of address.
27.
The club submits that, on 4 June 2010, it received a fax from the player’s agent
contesting the contract termination and pointing out that the player was on
vacation after the end of the season. However, according to the club, the player
never returned after he had already been released by Club A on 17 May 2010. The
club adds that the player knew as early as in January 2010 that he was to return
to the club on 1 June 2010, which he failed to do in spite of the club having put
him in default.
28.
Furthermore, the club was contacted by Club T, from country S on 4 June 2010,
asking it to approve test trainings with the player, “who is signed under your
contract”. According to the club, this shows that the player and his agent were in
negotiation with other clubs for the player’s transfer to another team.
29.
As regards the player’s financial claim, the club admits that it owes the amount of
EUR 16,666 to the player for outstanding salaries and EUR 1,400 for unpaid rent
relating to April and May 2010.
30.
For these reasons, the club holds that it terminated the employment contract with
just cause and asks that the player be ordered to pay the amount of EUR 343,000
to the club in compensation, which amount represents the amount it paid to the
player’s former club, Club G (country S) on the occasion of his transfer to the club.
In addition, the club asks that the player be ordered to pay procedural costs and
legal expenses.
Player’s reply to counterclaim:
31.
The player rejects the club’s counterclaim and asserts that since he was aware of
the tense relation with the club, he would not have acted in a way that would
have allowed the club to put an end to his contract. The player considers that,
whereas the season started on 1 June 2010, the first day of training does not
necessarily start on that day, in his case training started on 9 June 2010. The
Player F, from country A / Club O, from country C / Club L, from country S
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player deems that every player is entitled to vacation after the end of the season
and he asserts that the club’s team manager had granted vacation until 9 June
2010.
32.
The player submits that prior to the termination of his contract by the club, the
latter had not taken any other measures such as the imposition of a fine, which
would have been a first step to take should the club have had a reason to do so.
33.
The player denies that he was looking for another club and explains that he was
quite well-known within the country S super league and that clubs have shown
interest in him, whereas he wished to continue his contract with the club.
Club’s final position:
34.
The club rejects the allegations of the player and insists that he already knew on
31 January 2010 that he had to return to the club on 1 June 2010. Should the
player have had doubts as regards the club’s intentions with respect to his
employment contract, he should have sent a letter to the club enquiring about
the date on which training resumed.
35.
The club further highlights that it is well known to the club’s players and officials
that training for players who are not part of the first 11 squad starts in the first
week of June, whereas for the other players training starts in the second week of
June.
36.
In addition, reverting to the player’s argument that the club should have first
imposed a fine, the club highlights that the player had not responded to any of its
letters and never asked for an extension to return to country C. According to the
club, the player did not act in a way so as to avoid a termination of the contract.
37.
The club further refers to a DRC decision in which it was stated that the player’s
absence without authorisation or just cause is to be considered as an unjustified
breach of contract by the player.
38.
Therefore, the club maintains its counterclaim.
Position of Club L:
39.
Club L holds that it has not induced the player to a breach of contract and
explains that the player contacted Club L spontaneously and he had indicated that
he was not contractually bound to any club, which was confirmed by his agent.
The player had indicated that he had not been paid by his previous club.
Player F, from country A / Club O, from country C / Club L, from country S
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40.
Club L further deems that should the player have been contractually bound to the
country C club, the latter would surely have contacted Club L, either prior to or
after the registration of the player with Club L.
41.
All in all, Club L deems that it has no interest in this matter and that no reproach
can be made against it.
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 26 October 2010. 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 par.
1 and par. 2 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 par. 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2014) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between an country A player and a country C club and
involving a country S club.
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 2014), and considering that the present claim was lodged on 26 October
2010, 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.
Player F, from country A / Club O, from country C / Club L, from country S
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5.
The members of the Chamber took note that the Claimant/Counter-Respondent,
on the one hand, maintains that the Respondent/Counter-Claimant had no just
cause to terminate the employment contract on 4 June 2010 and that therefore,
the Respondent/Counter-Claimant is to be held liable for the early termination of
the employment contract and payment of, inter alia, compensation in addition to
allegedly outstanding remuneration.
6.
The Chamber further noted that the Respondent/Counter-Claimant, for its part,
rejected the claim and held that it terminated the employment contract with just
cause on 4 June 2010 on the basis of the unauthorised absence of the
Claimant/Counter-Respondent at the start of the new sporting season, on the
basis of which it lodged a counterclaim against the Claimant/Counter-Respondent
asking, inter alia, that the latter be held liable to pay compensation for breach of
contract to the Respondent/Counter-Claimant.
7.
Considering the diverging position of the parties with regard to the question as to
which party is liable for the early termination of the pertinent employment
contract, the members of the Chamber highlighted that the central issue in this
dispute was to determine as to whether the Respondent/Counter-Claimant had
terminated the employment contract on 4 June 2010 with or without just cause as
well as to decide on the consequences thereof.
8.
Subsequently, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
9.
In this respect, the Chamber first turned its attention to the main argument
invoked by both the Claimant/Counter-Respondent and the Respondent/CounterClaimant in their claims that the employment contract was terminated on 4 June
2010 without and with just cause, respectively, i.e. the allegedly unauthorised
absence of the player at the club as of 1 June 2010.
10.
According to the Claimant/Counter-Respondent, on 1 June 2010, he was on
vacation with the approval of the Respondent/Counter-Claimant, until 9 June
2010, and he was never informed of any change of the date on which training
would resume.
11.
The Respondent/Counter-Claimant refuted that the player was authorised to
return to the club on 9 June 2010 only and emphasised that the employment
contract clearly stipulates 1 June 2010 as the date on which the Claimant/Counter-
Player F, from country A / Club O, from country C / Club L, from country S
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Respondent had to report to the club and that it had reminded the
Claimant/Counter-Respondent to return on 1 June 2010.
12.
In this regard, the Chamber noted that the Claimant/Counter-Respondent had not
presented any written evidence in support of his allegation that he was absent
with the Respondent/Counter-Claimant’s approval as from 1 June 2010 until 9
June 2010.
13.
In view of the above, the Chamber went on to deliberate as to whether the
player’s unauthorised absence as of 1 June 2010, which is invoked by the
Respondent/Counter-Claimant as the ground for the unilateral termination of the
employment contract, can be considered as a just cause for the
Respondent/Counter-Claimant to prematurely terminate the employment contract
on 4 June 2010.
14.
In this respect, the members of the Chamber referred to the Chamber’s wellestablished jurisprudence in accordance with which a few days’ absence could not
constitute, per se, a valid reason for the termination of an employment contract.
Only a breach or misconduct which is of certain severity would justify 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 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 only ever be an ultima
ratio measure.
15.
With this in mind, the Chamber was of the opinion that the objective
circumstances on 4 June 2010 did not allow the Respondent/Counter-Claimant to
prematurely terminate the employment contract with the Claimant/CounterRespondent, since there would have been more lenient and proportionate
measures to be taken (e.g., among others, the imposition of a fine) in order to
assure the player’s fulfilment of his contractual duties.
16.
For the sake of good order, at this point, the members of the Chamber wished to
highlight that the DRC decision referred to by the Respondent/Counter-Claimant
in its argumentation was based on the absence of a player without valid reason
during 3 months.
Player F, from country A / Club O, from country C / Club L, from country S
Page 9 of 13
17.
On account of the above, the Chamber concluded that the Respondent/CounterClaimant had no just cause to unilaterally terminate the employment contract on
4 June 2010 and, therefore, decided that the Respondent/Counter-Claimant is to
be held liable for the early termination of the employment contact without just
cause.
18.
At the same time, the members of the Chamber rejected the counterclaim of the
Respondent/Counter-Claimant.
19.
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/Counter-Claimant.
20.
First of all, the members of the Chamber concurred that the Respondent/CounterClaimant must fulfil its obligations as per employment contract up until the date
of termination of the contract in accordance with the general legal principle of
“pacta sunt servanda”. Consequently, the Chamber decided that the
Respondent/Counter-Claimant is liable to pay to the Claimant/CounterRespondent the remuneration that was outstanding at the time of the contract
termination i.e. the amount of EUR 18,066, consisting of two monthly salaries and
rental payments for April and May 2010, which amount was acknowledged as due
to the Claimant/Counter-Respondent by the Respondent/Counter-Claimant.
21.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the Claimant/Counter-Respondent is entitled to receive from
the Respondent/Counter-Claimant compensation for breach of contract in
addition to the outstanding remuneration on the basis of the relevant
employment contract.
22.
Subsequently, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber 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.
Player F, from country A / Club O, from country C / Club L, from country S
Page 10 of 13
23.
In application of the relevant provision, the Chamber held that it 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 Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
24.
As a consequence, the members of the Chamber determined that the amount of
compensation in the present matter had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber 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. In this regard, the Dispute Resolution Chamber emphasised
beforehand that each request for compensation for contractual breach has to be
assessed by the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter.
25.
In order to estimate the amount of compensation in the present case, the
members of the Chamber first turned their attention to the remuneration and
other benefits due to the Claimant/Counter-Respondent under the existing
contract and/or the new contract, which criterion was considered by the Chamber
to be essential. The members of the Chamber deemed it important to emphasise
that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take
into account both the existing contract and the new contract, if any, in the
calculation of the amount of compensation.
26.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract for
the remaining duration until 31 May 2011 and concluded that the
Claimant/Counter-Respondent would have received a total remuneration of EUR
100,000. In this context, and bearing in mind the claim of the Claimant/CounterRespondent, the members of the Chamber emphasised that the pertinent
employment contract dated 1 June 2010 does not include any accommodation
benefits for the player.
27.
In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 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
Player F, from country A / Club O, from country C / Club L, from country S
Page 11 of 13
the calculation of the amount of compensation for breach of contract in
connection with the player’s general obligation to mitigate his damages.
28.
Indeed, on 7 August 2010, the Claimant/Counter-Respondent signed an
employment contract with the Club L, from country S, valid as from 19 August
2010 until 31 May 2011, in accordance with which the Claimant/CounterRespondent was entitled to receive the total amount of approximately EUR
26,125.
29.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant/Counter-Respondent’s
general obligation to mitigate his damage, the Chamber decided that the
Respondent/Counter-Claimant must pay the amount of EUR 73,875 to the
Claimant/Counter-Respondent as compensation for breach of contract in the case
at hand.
30.
In addition, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the Claimant/Counter-Respondent’s
request relating to legal expenses.
31.
The members of the Chamber concluded their deliberations on the present matter
by rejecting any further claim lodged by the Claimant/Counter-Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player F, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club O, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent
outstanding remuneration in the amount of EUR 18,066 within 30 days as from the
date of notification of this decision.
4.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent
compensation for breach of contract in the amount of EUR 73,875 within 30 days
as from the date of notification of this decision.
Player F, from country A / Club O, from country C / Club L, from country S
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5.
In the event that the amounts due to the Claimant/Counter-Respondent are not
paid by the Respondent/Counter-Claimant within the stated time limits, the
present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
6.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
7.
The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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 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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player F, from country A / Club O, from country C / Club L, from country S
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