Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 August 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Johan van Gaalen (South Africa), member
Todd Durbin (USA), member
Zola Percival Majavu (South Africa), member
on the matter between the player,
Player A, country B
as Claimant / Counter-Respondent
against the club,
Club C, country D
as Respondent / Counter-Claimant
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 22 June 2015, the player from country B, Player A (hereinafter: the
Claimant / Counter-Respondent), born on 13 June 1986, and the club from
country D, Club C (hereinafter: the Respondent / Counter-Claimant) signed an
employment contract (hereinafter: the contract) valid as from the date of
signature until 31 May 2016, by means of which the player was entitled to a
total remuneration of USD 180,000, distributed in monthly salaries payable at
the end of each of month, starting from 1 August 2015 until 31 May 2016, i.e.
10 instalments of USD 18,000.
2.
According to art. 2 of the contract, “if [the Claimant / Counter-Respondent]
leaves [the Respondent / Counter-Claimant] before the end of this contract he
will be responsible for all expenses paid by [the Respondent / CounterClaimant] both these were paid by [the Respondent / Counter-Claimant] for his
transfer agreement and paid for any other reason that is in addition to the
compensation for the losses caused to [the Respondent / Counter-Claimant]”.
3.
Art. 9 of the contract stipulated that “[the Claimant / Counter-Respondent]
commits to do his best and use all abilities in all matches in which he
plays…and to train at the times and places determined by [the Respondent /
Counter-Claimant]”.
4.
According to art. 11 of the contract “[the Claimant / Counter-Respondent]
commits to comply with the laws of the state and also the systems and
regulations of [the Respondent / Counter-Claimant] and the country D’s
Football Federation as well as the Continental and International Federations”.
5.
The contract, in its art. 18, established several scenarios in which the
Respondent / Counter-Claimant may impose “penalties proportional of the
nature of misuse, misbehaviour, or mistakes” on Claimant / CounterRespondent, inter alia, the following:
-
-
Breach by the Claimant / Counter-Respondent of the Respondent /
Counter-Claimant’s “Union Rules”;
Breach by the Claimant / Counter-Respondent of “the instruction” of
the contract;
If the Claimant / Counter-Respondent does not follow the instructions of
the Trainer or Respondent / Counter-Claimant’s manager;
The Claimant / Counter-Respondent’s in-game cautions and dismissals;
“the absence during the matches of which he is instructed to share and
there he shares but during which his efforts and seriousness are not
given”;
If the Claimant / Counter-Respondent misbehaves;
Player A, country B / Club C, country D
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-
6.
If the Claimant / Counter-Respondent misses the medical care after
injuries.
Moreover, the same article mentioned above defined which penalties would
apply, not necessarily in the following order:
-
“In writing draw of attention”;
A warning in writing;
“Pones cancellation”;
Deduction of monthly salary not exceeding 30%;
Deduction of monthly salary “as the Football Association of country D,
the Continental Union, or the club’s board decides it”.
7.
Furthermore, the same art. 18 established that in case of “repeated
misbehaviours by [the Claimant / Counter-Respondent] of which causes to loss
[the Respondent / Counter-Claimant]”, the Respondent / Counter-Claimant is
entitled to terminate the contract.
8.
Art. 19 of the contract stipulated that the Respondent / Counter-Claimant is
entitled to terminate the contract if the Claimant / Counter-Respondent is
convicted “in violating the country’s laws or the items of this contract”, and
that the Respondent / Counter-Claimant has the right to claim compensation
equal to the salary as from the termination date until the end date of the
contract, or the amount of “three thousands”, the greater of both.
9.
Moreover, art. 20 of the contract established that “Unless otherwise provided
in this contract is subject to the law of the FIFA Football disputes that arise
between the parties in court sports (cup)”.
10.
On 21 January 2016, the Claimant / Counter-Respondent lodged a claim
against the Respondent / Counter-Claimant before FIFA for outstanding
remuneration and breach of contract without just cause, requesting the
amount of USD 144,000, composed as follows:
11.
USD 54,000 as outstanding remuneration corresponding to the salaries
of October 2015, November 2015 and December 2015;
USD 90,000 as compensation for breach of contract, corresponding to
the residual value of the contract, i.e. the monthly salary payments from
January 2016 until May 2016;
Moreover, the Claimant / Counter-Respondent requested sporting
sanctions to be imposed on the Respondent / Counter-Claimant.
According to the Claimant / Counter-Respondent, the Respondent / CounterClaimant breached its financial obligations towards him since the beginning of
the employment relationship. In this regard, the player held that the
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Respondent / Counter-Claimant only paid his salaries for August 2015 and
September 2015.
12.
The Claimant / Counter-Respondent sustained that, on 3 January 2016, he
received a document from the Respondent / Counter-Claimant titled “Warning
letter”. The Claimant / Counter-Respondent explained that by means of this
letter, the Respondent / Counter-Claimant, in reference to art. 9 of the
contract, warned him about his performance.
13.
Subsequently, the Claimant / Counter-Respondent affirmed that, on 6 January
2016, in order to protect his legal interests, he sent a letter to the Respondent /
Counter-Claimant in which he put it in default, requesting the payment of the
salaries for the time period between September 2015 and December 2015,
within 10 days as of the reception of this letter.
14.
The Claimant / Counter-Respondent held that, on 8 January 2016, he received
another letter form the Respondent / Counter-Claimant titled “Attention
letter” by means of which he was warned because he did not participate in the
Respondent / Counter-Claimant’s match of 25 December 2015, due to the
accumulation of 3 consecutive yellow cards during the championship.
15.
Moreover, the Claimant / Counter-Respondent sustained that by means of a
document dated 11 January 2016, notified to him on 12 January 2016, he was
informed that the Respondent / Counter-Claimant passed a decision on 28
December 2015, in reference to art. 9 of the contract, in which it was resolved
that due to his lack of effort, the board of directors determined to deduct 30%
of the value of the contract. In this respect, according to the Claimant /
Counter-Respondent, the Respondent / Counter-Claimant was attempting to
avoid the payment of salaries towards him, since the alleged outstanding
remuneration at the time amounted to USD 54,000.
16.
Furthermore, the Claimant / Counter-Respondent declared that by means of an
additional letter dated 11 January 2016 and notified to him on 12 January
2016, the Respondent / Counter-Claimant terminated the contract unilaterally
in writing as of 11 January 2016, based on art. 9 of the contract.
17.
The Claimant / Counter-Respondent held that on 14 January 2016, he sent a
letter to the Respondent / Counter-Claimant in which he contested the
disciplinary measure regarding his salary deduction and the unilateral
termination. According to the Claimant / Counter-Respondent, this
communication remained unanswered by the Respondent / Counter-Claimant.
18.
In his claim, the Claimant / Counter-Respondent contested the grounds and
legitimacy of the disciplinary proceedings and measures imposed on him, and
stated that the Respondent / Counter-Claimant was not entitled to unilaterally
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terminate the contract. Furthermore, the Claimant / Counter-Respondent
sustained that there is an abundance of written evidence that proves the
unilateral and premature termination of the contract by the Respondent /
Counter-Claimant without just cause.
19.
On 3 March 2016, along with its reply to the Claimant / Counter-Respondent’s
claim, the Respondent / Counter-Claimant lodged a counter-claim against the
Claimant / Counter-Respondent. In its submission, the Respondent / CounterClaimant rejected the Claimant / Counter-Respondent’s claim and requested
the payment of USD 180,000.
20.
In its counter-claim, the Respondent / Counter-Claimant sustained that the
Claimant / Counter-Respondent was absent from training sessions for 21 days
in three months without a valid excuse. In order to support its argument, the
Respondent / Counter-Claimant submitted an internal report dated 28
December 2015 signed by its general manager where it is stated that the
Claimant / Counter-Respondent was absent on 21 days between October and
December 2015.
21.
According to the Respondent / Counter-Claimant, it had a meeting with the
Claimant / Counter-Respondent during which it offered the payment of his
salaries. The Respondent / Counter-Claimant sustained that the Claimant /
Counter-Respondent refused to receive his salaries. The Respondent / CounterClaimant further sustained that by refusing to receive his salaries, the Claimant
/ Counter-Respondent terminated the contract without just cause.
22.
Moreover, the Respondent / Counter-Claimant held that the Claimant /
Counter-Respondent breached his contractual obligations as he did not
commit to do his best and use his abilities in all matches and did not train at
the times and places determined by the Respondent / Counter-Claimant.
23.
The Claimant / Counter-Respondent submitted his replica, rejecting the
Respondent / Counter-Claimant’s argumentation and counter-claim. On his
part, the Claimant / Counter-Respondent insisted on his previous arguments.
24.
The Claimant / Counter-Respondent declared that although he could have
come to FIFA before in order to claim the alleged outstanding remuneration,
he chose not to, in order to wait for a professional solution. Moreover, the
Claimant / Counter-Respondent highlighted that according to him, the
Respondent / Counter-Claimant’s disciplinary proceedings lack any objective
reason. Particularly, the Claimant / Counter-Respondent held that the
“Warning letter” and the “Attention letter” do not contain any date, and
therefore, they lack legal basis. Moreover, the Claimant / Counter-Respondent
held that as he played in most of the matches of the club, it is illogical that the
Respondent / Counter-Claimant argued that he has not performed at an
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appropriate level. The Claimant / Counter-Respondent sustained that the
disciplinary measures of the Respondent / Counter-Claimant had the sole
intention to induce him to retreat from his financial rights and to induce him
to terminate the contract, or in the alternative to force him to request a
settlement. The Claimant / Counter-Respondent further sustained that the
financial sanctions imposed on him by the Respondent / Counter-Claimant are
not based on any contractual or regulatory provisions.
25.
The Claimant / Counter-Respondent further argued that the Respondent /
Counter-Claimant’s counter-claim is completely abusive, without legal
sustainability and without documentary evidence. Regarding his alleged
absence from trainings and the documentation enclosed by the Respondent /
Counter-Claimant in support of its argument, the Claimant / CounterRespondent sustained that said document is contradictory, as it mentions 25
December 2015 as a date where he was allegedly absent from trainings, while
in the document titled “Attention letter” it is stated that he missed a match on
that same date due to the accumulation of 3 consecutive yellow cards. The
Claimant / Counter-Respondent further stated that he was never informed
about this documentation before and that there is no evidence that he was
duly notified of it. Moreover, he held that it was never brought up by the
Respondent / Counter-Claimant in its previous communications to him. The
Claimant / Counter-Respondent held that this document was fabricated after
he lodged his claim against the Respondent / Counter-Claimant.
26.
Furthermore, the Claimant / Counter-Respondent sustained that even if the
absences are taken into account, the mentioned absences are not consecutive
and repeated during an uninterrupted period of time and, therefore, it cannot
be considered that the Claimant / Counter-Respondent abandoned the
working place.
27.
The Claimant / Counter-Respondent further stated that the Respondent /
Counter-Claimant is pretending to never have terminated the contract despite
the evidence enclosed by him and that the Respondent / Counter-Claimant’s
affirmation that he refused to receive his salaries is absurd and illogical, as he
requested the payment of his salaries on 6 January 2016.
28.
Finally, the Claimant / Counter-Respondent amended his request for relief,
requesting the amount of USD 144,000, composed as follows:
USD 54,000 plus 5% interest as from the due dates, as outstanding
remuneration corresponding to the salaries of October 2015, November
2015 and December 2015;
USD 90,000 plus 5% interest as from the moment of notification of the
decision, as compensation for breach of contract, corresponding to the
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residual value of the contract, i.e. the monthly salary payments from
January 2016 until May 2016;
Sporting sanctions to be imposed on the club;
Rejection of the counter-claim.
29.
The Respondent / Counter-Claimant submitted its duplica, where it reiterated
its position. First, the Respondent / Counter-Claimant clarified that it did not
fail to pay the Claimant / Counter-Respondent’s salaries, and explained that it
allegedly had a meeting with him on “18/1/2015” where it offered the salaries
of October 2015, November 2015 and December 2015, but that the Claimant /
Counter-Respondent refused to receive them. In this respect, the Respondent /
Counter-Claimant enclosed a statement from its management dated 29
February 2016, addressed “To whom it may Concern Subject / Player A” where
it is stated that “we would like to inform you that [the Claimant / CounterRespondent] was asked for a meeting in [the Respondent / Counter-Claimant]
management and informed to receive his salaries, but he refused the offer of
[the Respondent / Counter-Claimant] and after two days he left country D
without [the Respondent / Counter-Claimant] acceptance and he did not
handed his car and his apartment”.
30.
The Respondent / Counter-Claimant further argued that it submitted its
counter-claim based, on the one hand, on the Claimant / Counter-Respondent’s
performance in official matches and training sessions, and on the other hand,
the Claimant / Counter-Respondent’s absence for 21 days from the Respondent
/ Counter-Claimant’s training sessions, referring again to art. 9 of the contract.
In order to support its argument in respect to the performance, the
Respondent / Counter-Claimant enclosed a witness statement, dated 15 June
2016, from its managing director where it is stated that the Claimant /
Counter-Respondent “was not serious about the trainings and the games he
attended and did not provide and make the requested efforts he should have
exerted”.
31.
In respect to the absence from trainings, the Respondent / Counter-Claimant
argued that Claimant / Counter-Respondent was absent for 25 days without its
permission, namely for 15 days between 20 September 2015 and 5 October
2015 and for 10 days between 10 November 2015 and 20 November 2015. In
order to support its allegation, the Respondent / Counter-Claimant enclosed a
document dated 27 June 2016, titled “Inquire about the movement of entry
and exit” from the Ministry of Interior of country D, where the “Data entry
and exit” of the Claimant / Counter-Respondent is detailed as follows:
Port
Airport
Airport
Arrival/departure
country E
country F
Player A, country B / Club C, country D
movement
Exit
Entry
Date
21.01.2016
20.11.2015
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Airport
Airport
Airport
Airport
country B
country E
country E
country E
Exit
Entry
Exit
entry
10.11.2015
05.10.2015
20.09.2015
15.08.2015
32.
Moreover, according to the Respondent / Counter-Claimant and in reference to
art. 11 of the contract, country D’s Labour Law has to be applied to the matter
at hand. Moreover, the Respondent / Counter-Claimant held that according to
country D’s Labour Law, it was entitled to terminate the contract due to the
Claimant / Counter-Respondent’s absences and it was entitled to deduct the
Claimant / Counter-Respondent’s salary. In this respect, the club referred to
several articles of country D’s Labour Law in order to substantiate its
argument.
33.
Finally, the Respondent / Counter-Claimant declared that “[the Claimant /
Counter-Respondent] sent a letter on 6 January 2016 informing [the
Respondent / Counter-Claimant] terminating the contract as well [the
Respondent / Counter-Claimant] terminated the contract on 11/1/2016 with
[the Claimant / Counter-Respondent] for the reason his performance with
[the Respondent / Counter-Claimant] during the official matches and trainings
sessions not as supposed to be and what the management and team manager
expected by him, and for the reason [the Claimant / Counter-Respondent] was
absent 21 days from training sessions and 25 days left country D without the
[the Respondent / Counter-Claimant]’s acceptance as discussed above” and
referred to both arts. 14 and 17 of the Regulations on the Status and Transfer
of Players of FIFA.
34.
In his final comments, the Claimant / Counter-Respondent reiterated his
position and request for relief.
35.
The Claimant / Counter-Respondent further argued that all the disciplinary
measures of the Respondent / Counter-Claimant are an attempt to create a
“fictional situation of repeated misconducts” by the Claimant / CounterRespondent.
36.
According to the Claimant / Counter-Respondent, the Respondent / CounterClaimant’s duplica, in accordance with art. 9 par. 3 of the Rules Governing the
procedures of the Players’ Status Committee and of the Dispute Resolution
Chamber, should be considered inadmissible as it consists of an amendment.
37.
Moreover, the Claimant / Counter-Respondent referred to the document
enclosed in the Respondent / Counter-Claimant’s duplica dated 29 February
2016, and argued that this document is dated almost two months after the
termination of the contract by the Respondent / Counter-Claimant, and
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therefore, it should be considered as proof that the Respondent / CounterClaimant is “fabricating exhibits in order to sustain its allegations”.
Furthermore, he held that said document is not addressed to him, as the
document is addressed to Mr G and his name is Player A. The Claimant /
Counter-Respondent further held that this document does not prove that a
meeting was indeed held on 18 January 2016, and as it is only signed by the
Respondent / Counter-Claimant, it is completely subjective. The Claimant /
Counter-Respondent declared that, in consequence, the Respondent / CounterClaimant’s argument in respect to his alleged refusal to receive his salaries has
to be rejected.
38.
With respect to the witness statement from the Respondent / CounterClaimant’s managing director enclosed to its duplica, the Claimant / CounterRespondent rejected the contents of such document as he stated that it was
made by a “non-verified person”, 5 months after the termination of the
contract, not given in front of a public authority and never communicated to
him before.
39.
The Claimant / Counter-Respondent further held that although he “accepted
the respect of the country D’s legislation”, the “football employment
relationship exempts from the provisions of any ordinary, civil legislation,
especially in the conditions of an employment of international dimension”.
Therefore, the Claimant / Counter-Respondent argued that FIFA’s Regulations
on the Status and Transfers of Players are applicable to the matter at hand.
Furthermore, the Claimant / Counter-Respondent held that although art. 18 of
the contract “generates the right to the club to terminate the contract”, the
application of country D’s Labour Law is incorrect, as the contract has a
reference to “the FIFA legislation”.
40.
Moreover, the Claimant / Counter-Respondent rejected the grounds of his
termination under country D’s Labour Law, as he argued that he “never
consumed any actions that have produced any losses (financial or moral) for
[the Respondent / Counter-Claimant], has never breached any contractual or
legal obligations” and “has never consumed repeated infringements of the
instruction of the employer”.
41.
The Claimant / Counter-Respondent subsequently referred to the document
dated 27 June 2016, titled “Inquire about the movement of entry and exit”
enclosed to the Respondent / Counter-Claimant’s duplica, and sustained that
the document lacks validity. In this respect, the Claimant / Counter-Respondent
questioned the credibility of the Arabic version of the document as according
to the Claimant / Counter-Respondent, it does not contain any signature or
seal. The Claimant / Counter-Respondent further held that this document has
not been translated and certified of its content by an authorized entity, thus,
the Claimant / Counter-Respondent questioned if it has been issued by the
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Ministry of Internal Affairs in the first place. The Claimant / CounterRespondent held that it is an inconclusive document that only proves the
procedural misconduct of the Respondent / Counter-Claimant.
42.
Finally, the Claimant / Counter-Respondent argued that there is no hard
evidence that he has committed any disciplinary violation.
43.
The Claimant / Counter-Respondent sustained he did not sign an employment
contract for the period between 11 January 2016 and 31 May 2016. Moreover,
according to the information contained in the Transfer Matching System, the
player signed a contract with the club from country H, Club I, valid as from 1
July 2016 until 31 May 2018.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, the DRC took note that the present matter was
submitted to FIFA on 21 January 2016. Consequently, the Chamber concluded
that the 2015 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 2015
editions of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 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 2016) the DRC is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from
country B and a club from country D.
3.
The competence of the Chamber having been established, the Chamber
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,
it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on
the Status and Transfer of Players (editions 2015 and 2016), and considering
that the present matter was submitted to FIFA on 21 January 2016, the 2015
edition of the aforementioned regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
Having established the foregoing, and entering into the substance of the
matter, the Chamber continued by acknowledging the above-mentioned facts
as well as the documentation contained in the file in relation to the substance
of the matter. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary
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evidence which it considered for the assessment of the matter at hand. In
particular, the Chamber recalled that in accordance with art. 6 par. 3 of
Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or
evidence generated or contained in the Transfer Matching System (TMS).
5.
In this respect, the DRC acknowledged that the parties signed an employment
contract valid as from 22 June 2015 until 31 May 2016. The DRC noted that
according to the contract, the Claimant / Counter-Respondent was entitled to
receive, inter alia, a remuneration of USD 180,000, distributed in monthly
salaries payable at the end of each month, starting from 1 August 2015 until
31 May 2016, i.e. 10 instalments of USD 18,000.
6.
Furthermore, the members of the Chamber paid due consideration to the fact
that on 6 January 2016, the Claimant / Counter-Respondent put the
Respondent / Counter-Claimant in default, requesting the payment of alleged
outstanding remuneration corresponding to the salaries for the period
between September 2015 and December 2015, giving the Respondent /
Counter-Claimant a 10 days deadline to settle the alleged debt. In this respect,
the DRC observed that this letter is a reply to an undated letter from the
Respondent / Counter-Claimant addressed to the Claimant / CounterRespondent, by means of which he is warned by the Respondent / CounterClaimant about his performance in respect to art. 9 of the contract (cf. point
I.12. above).
7.
In this context, the DRC took note that the Claimant / Counter-Respondent
held that, on 8 January 2016, he received a letter from the Respondent /
Counter-Claimant in which it warned him about missing a match on 25
December 2015, as he had accumulated 3 yellow cards, and that, on 12 January
2016, by means of a letter dated 11 January 2016, the Respondent / CounterClaimant informed him that its board of directors had decided on 28 December
2015 to deduct 30% of the value of his contract, due to an alleged lack of
effort, in accordance with art. 9 of the contract. The Chamber observed that
these assertions were not disputed or contested by the Respondent / CounterClaimant.
8.
Subsequently, it was duly noted by the DRC that by means of another letter
dated 11 January 2016, the Respondent / Counter-Claimant terminated the
contractual relationship, based on art. 9 of the contract and in connection with
the disciplinary decision taken by the board of directors of the Respondent /
Counter-Claimant, which was communicated to the Claimant / CounterRespondent in the other letter of the same date, i.e. 11 January 2016.
9.
With the above considerations, the Chamber highlighted that the Claimant /
Counter-Respondent lodged a claim against the Respondent / Counter-
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Claimant before FIFA for outstanding remuneration and breach of contract,
requesting the amount of USD 144,000. The DRC also highlighted that the
Respondent / Counter-Claimant, on its part, rejected said claim and lodged a
counter-claim against the Claimant / Counter-Respondent, requesting the
payment of USD 180,000.
10.
In this context, the members of the Chamber pondered that the Claimant /
Counter-Respondent, on the one hand, maintained that the Respondent /
Counter-Claimant has not fulfilled its contractual obligation towards him, as
the salaries for October 2015 to December 2015 are still allegedly outstanding
and sustained that the Respondent / Counter-Claimant breached the
employment contract by putting an end to the contractual relation unilaterally
without just cause, while the Respondent / Counter-Claimant, on the other
hand, acknowledged that it terminated the employment contract, however,
sustaining that it had just cause to do so on the basis of the Claimant /
Counter-Respondent’s performance in official matches and training sessions in
accordance with art. 9 of the contract, as well as on the basis of the Claimant /
Counter-Respondent’s absence for 21 days from its training sessions without
authorization. The Respondent / Counter-Claimant further argued that it has
not breached its obligations towards the Claimant / Counter-Respondent,
since, allegedly it was the Claimant / Counter-Respondent himself who refused
to receive his salaries after being offered by it.
11.
Moreover, it was duly examined that the Respondent / Counter-Claimant
asserted that, in accordance with art. 11 of the contract, country D’s Labour
law should be applied to the matter at hand. In this regard, the Chamber
recalled the contents of both art. 11 and art. 20 of the contract, and concluded
that the relevant employment contract does not provide a clear choice of
applicable law, and therefore, it does not see a reason to not apply the
Regulations, general principles of law and, where existing, the Chamber’s wellestablished jurisprudence, in order to correctly assess the matter at hand.
12.
Having established the aforementioned, the Chamber concluded that the
underlying issue in this dispute, was to determine whether the employment
contract had been unilaterally terminated with or without just cause by the
Respondent / Counter-Claimant and which party was responsible for the early
termination of the contractual relationship in question.
13.
In view of the above, the members of the DRC first turned their attention to
the assertion of the Respondent / Counter-Claimant in respect to the Claimant /
Counter-Respondent refusing to receive his salaries. In this respect, the DRC
recalled the contents of art. 12 par. 3 and par. 6 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
Player A, country B / Club C, country D
12/18
14.
In this regard, the DRC recalled that the Respondent / Counter-Claimant had
only submitted a statement from its own management in support of its
allegation and remarked that such document was produced by the Respondent
/ Counter-Claimant as well as that the person who made said statement could,
as employee of the club, not be considered as an impartial witness. What is
more, as it remains uncontested that the Claimant / Counter-Respondents
requested his salaries on 6 January 2016, i.e days before he allegedly refused
to receive his salaries, the DRC decided that the respective argumentation of
the Respondent / Counter-Claimant could not be upheld.
15.
Subsequently, the Chamber analysed the Respondent / Counter-Claimant’s
assertion that it terminated the employment contract, with just cause, basing
its counter-claim on the Claimant / Counter-Respondent’s performance, namely
“lack of effort” in official matches and training sessions, as well as on the basis
of the Claimant / Counter-Respondent’s absence for 21 days from its training
sessions without authorization.
16.
In this regard, he Chamber took due note of the documents that had been
presented by the Respondent / Counter-Claimant in this respect. The Chamber
also took into account that the termination letter dated 11 January 2016 does
not contain any reference to the Claimant / Counter-Respondent’s absences
from training sessions but solely indicated that the decision to terminate the
employment contract is based on art. 9 of the contract, i.e. the performance of
the Claimant / Counter-Respondent and the decision taken by the board of
directors of the Respondent / Counter-Claimant, in which it was determined to
deduct 30% of the value of the contract due to the Claimant / CounterRespondent’s alleged lack of effort.
17.
Moreover, the members of the Chamber noticed that the Respondent /
Counter-Claimant submitted statements from its own managing director in
order to support its allegation regarding the Claimant / Counter-Respondent’s
alleged lack of effort and absences. Once again, the DRC remarked that such
documents were produced by the Respondent / Counter-Claimant as well as
that the person who made said statements could, as employee of the club, not
be considered as an impartial witness.
18.
In this respect, the members of the Chamber wished to emphasize that
terminating a contract shall remain the last option only in case of a serious
breach of contract. The members of the Chamber wished to outline that in
accordance with the Chamber’s constant jurisprudence, a player’s (poor)
performance, in this case, “lack of effort”, does not constitute a valid reason to
unilaterally terminate an employment contract.
19.
Furthermore, after a careful study of the documentation presented by the
Respondent / Counter-Claimant in connection with the Claimant / Counter-
Player A, country B / Club C, country D
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Respondent’s alleged unauthorized absences, the Chamber decided that it
cannot be undoubtedly established that the Claimant / Counter-Respondent
was absent without the approval of the Respondent / Counter-Claimant, due
to the lack of documentation corroborating that the Respondent / CounterClaimant had requested the Claimant / Counter-Respondent to resume his
duties at the time of the alleged absences from the training sessions occurred,
and that, therefore, the Respondent / Counter-Claimant’s related argument
had to be rejected.
20.
On account of the above, the Chamber concluded that the Respondent /
Counter-Claimant had no just cause to unilaterally terminate the employment
contract on 11 January 2016 and, therefore, decided that the Respondent /
Counter-Claimant is to be held liable for the early termination of the
employment contact without just cause.
21.
Having established that the Respondent / Counter-Claimant is to be held liable
for the early termination of the employment contract without just cause, the
Chamber focussed its attention on the consequences of such breach of
contract. Taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the Claimant / Counter-Respondent is entitled to receive
from the Respondent / Counter-Claimant an amount of money as
compensation for breach of contract in addition to any outstanding payments,
if any, on the basis of the relevant employment contract.
22.
The Chamber then reverted to the Claimant / Counter-Respondent’s financial
claim, which includes outstanding remuneration corresponding to the months
of October 2015, November 2015 and December 2015, in the amount of USD
54,000.
23.
Subsequently, the members of the Chamber recalled that the Respondent /
Counter-Claimant’s argumentation regarding the alleged refusal of the
Claimant / Counter-Respondent to receive said salaries cannot be upheld (cf.
points II.13. and II.14. above). Moreover, the Chamber analysed the fine
imposed on the Claimant / Counter-Respondent, corresponding to a deduction
of 30% of the value of the contract, a percentage that equals USD 54,000, due
to his alleged lack of effort. In this respect, the Chamber pointed out that a
player cannot be fined for alleged poor performance, as this is purely
unilateral and subjective evaluation by the club. Thus, the Chamber
emphasised that poor or unsatisfactory performance cannot, by any means, be
considered as a valid reason to reduce a player’s salary or fine a player. Hence,
the Chamber considered that by fining the Claimant / Counter-Respondent
based on poor performance, the Respondent / Counter-Claimant acted in an
abusive manner and therefore, decided to also disregard the fine imposed by
the Respondent / Counter-Claimant.
Player A, country B / Club C, country D
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24.
Furthermore, and in any case, the Chamber wished to point out that the
imposition of a fine, or any other available financial sanction in general, shall
not be used by clubs as a means to set off outstanding financial obligations
towards players.
25.
In conclusion, the Chamber determined that the Respondent / CounterClaimant could not set-off its debt towards the Claimant / Counter-Respondent
by means of the various fines imposed on him and that the Respondent /
Counter-Claimant’s argumentation regarding the alleged refusal of the
Claimant / Counter-Respondent to receive his salaries for the months of
October 2015, November 2015 and December 2015, cannot be upheld.
Consequently, the Chamber concluded that the amount of USD 54,000 is due
to the Claimant / Counter-Respondent.
26.
In addition, taking into account the Claimant / Counter-Respondent’s request,
the Chamber decided that the Respondent / Counter-Claimantmust pay to the
Claimant / Counter-Respondent interest of 5% p.a. on each of the relevant
payments as of the day following the day on which the relevant payments fell
due, until the date of effective payment.
27.
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 any outstanding salaries on the basis of the relevant
employment contract.
28.
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 player 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.
29.
In application of the relevant provision, the Chamber held that it 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 Chamber established that no such
compensation clause was included in the employment contract at the basis of
the matter at stake.
Player A, country B / Club C, country D
15/18
30.
As a consequence, the members of the Chamber determined that the amount
of compensation payable by the Respondent / Counter-Claimant to the
Claimant / Counter-Respondent 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 remuneration of criteria to
be taken into consideration when calculating the amount of compensation
payable.
31.
Having recalled the aforementioned, and in order to evaluate the
compensation to be paid by the Respondent / Counter-Claimant, the members
of the Chamber took into account the remuneration due to the Claimant /
Counter-Respondent in accordance with the employment contract, along with
his professional situation after the early termination occurred. Bearing in mind
the foregoing as well as the claim of the Claimant / Counter-Respondent, the
Chamber proceeded with the calculation of the monies payable to the player
under the terms of the contract until 31 May 2016. Consequently the Chamber
concluded that the amount of USD 90,000 (i.e. salary as from January 2016
until May 2016 under the contract) serves as the basis for the determination of
the amount of compensation for breach of contract.
32.
The Chamber then took due note of the employment situation of the Claimant
/ Counter-Respondent after the termination of the contract at the basis of the
case at stake. Bearing in mind art. 17 par. 1 of the Regulations and in
accordance with the constant practice of the Dispute Resolution Chamber as
well as the general obligation of the player to mitigate his damages, such
remuneration under a new employment contract(s) shall be taken into account
in the calculation of the amount of compensation for breach of contract. In
this regard, the members of the Chamber noted that the Claimant / CounterRespondent had not signed any new employment contract within the period
of time between the termination of the contract and its original date of expiry
and, thus, had not been able to mitigate his damages. In this context, the
Chamber found it reasonable that the Claimant / Counter-Respondent had not
been able to find new employment within the relevant period of 5 months
only.
33.
In view of all of the above, the Chamber decided that the Respondent /
Counter-Claimant must pay the amount of USD 90,000 to the Claimant /
Counter-Respondent as compensation for breach of contract without just case,
which is considered by the Chamber to be a reasonable and justified amount
as compensation.
34.
In addition, taking into account the Claimant / Counter-Respondent’s request,
the Chamber decided that the Respondent / Counter-Claimant must pay to the
Claimant / Counter-Respondent interest of 5% p.a. on the amount of
Player A, country B / Club C, country D
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compensation, i.e. USD 90,000, as from the date of notification of this decision
until the date of effective payment.
35.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that the counter-claim lodged by the Respondent /
Counter-Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Player A, is accepted.
2.
The counter-claim of the Respondent / Counter-Claimant, Club C, is rejected.
3.
The Respondent / Counter-Claimant, has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
outstanding remuneration in the amount of USD 54,000.
4.
Within the same deadline, the Respondent / Counter-Claimant has to pay to
the Claimant / Counter-Respondent interest as follows:
-
5% p.a. over the amount of USD 18,000 as from 1 November 2015 until
the date of effective payment;
-
5% p.a. over the amount of USD 18,000 as from 1 December 2015 until
the date of effective payment;
-
5% p.a. over the amount of USD 18,000 as from 1 January 2016 until
the date of effective payment.
5.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of USD 90,000 plus 5%
interest p.a. on said amount as from the date of notification of this decision
until the date of effective payment.
6.
In the event that the amounts due to the Claimant / Counter-Respondent in
accordance with the above-mentioned numbers 3., 4., and 5. are not paid by
the Respondent / Counter-Claimant within the stated time limit, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee
for consideration and a formal decision.
7.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant immediately and directly of the account number to which
Player A, country B / Club C, country D
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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 58 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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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