Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 24 August 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
Joaquim Ev angelis ta (Portugal), member
Todd Durbin (US A), member
S tefano La Porta (Italy ), member
on the claim presented by the player,
Play er A, from country A
as Claimant
against the club,
Club B, from country B
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 16 December 2016 the Player A, from country A (hereinafter: the Claimant or
the player) and the Club B, from country B (hereinafter: the Respondent or the
club), concluded an employment contract valid as from 1 December 2016 until 30
November 2017 (hereinafter: the contract).
2.
According to “Schedule A” of the contract, the Claimant was, inter alia, entitled
to receive the following amounts:
“First Year: Season 2016: USD 11,000 per month and must be paid no later than
7th of the following month.”
3.
According to “Schedule B” of the contract, the Claimant was inter alia entitled to
receive the following amounts for the first year:
“(i) Total salary player for 2016/2017 season is USD 168,000.
(ii) Advance payment from salary USD 36,000 deducted from total salary.
(iii) 1 Flight Ticket Return for family not exchangeable for money and person
(iv) Accommodation furnished apartment or equivalent
(v) National Car
(vi) Bonus will be determined by [the Respondent].
4.
Clause 3.11 of the contract provides the following: “If [the Claimant] is unable to
play or attend training or ill, he shall immediately report that fact to [the
Respondent] and must inform [the Respondent] of the date on which he will be
able to resume training or to play again. [The Claimant] shall obtain a medical
certificate signed by a registered medical practitioner approved by the Member
and shall submit the certificate to [the Respondent] (…).
5.
Clause 3.3 provides the following: “[The Claimant] shall ensure that he is at all
times at his best physical condition and adhere to the norms set by the Football
Association of country B and must perform his obligations under this Contract at
the highest level of sportsmanship. [The Claimant] represents and warrants that
he does not have any physical or mental disability which is not disclosed to the
member and which may impede or adversely affect his performance.”
6.
Clause 4.2 provides: “If after seven days [the Claimant]’s performance is still
unsatisfactory to the Head Coach or [the Respondent], he will be given a second
and final written warning to improve his performance. If after the final warning is
given, [the Claimant]’s performance is still not satisfactory to the Head Coach or
[the Respondent], then [the Respondent] have the right to take the diminution
salary action according to the schedule given below:
Player A, from country A / Club B, from country B
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(i)
(ii)
(iii)
(iv)
30 days after the final warning and [the Claimant’s] performance is still
unsatisfactory to the member, then the member has the right to cut 10 %
from the players monthly salary;
30 days after the 10 % cut from [the Claimant’s] monthly salary and in the
opinion of the member, the player is still performing unsatisfactorily, then
the member has the right to cut maximum of 20% from the player’s
monthly salary.
30 days after the 20% cut from [the Claimant’s] monthly salary and in the
opinion of the member, the player is still performing unsatisfactorily, then
the member has the right to cut maximum of 30% from [the Claimant]’s
monthly salary.
If after 120 days after the date of the final warning and [the Claimant] is
still performing unsatisfactorily, then [the Respondent] can terminate this
contract in accordance to clause 8.4.
7.
Furthermore, clause 5.1 provides: ”[The Respondent] shall take disciplinary action
against [the Claimant] in the event of misconduct, inefficiency and poor
performance.”.
8.
Moreover, Clause 8.4 states the following regarding termination of the contract:
“This contract may be terminated immediately by [the Respondent] without
notice and the Member is released from all the Contract’s obligation if:
(i) [The Claimant] is charged under clause 4.2 or clause 5, or if [the Claimant] and
[the Respondent] mutually agree to end the contract.”
9.
On 23 January 2017, the Respondent sent a letter titled “Training Attendance
Notice” to the Claimant, containing the following: ”[The Respondent] would like
to inform you that we have already decided that you are not required to come for
training with the team anymore starting 23 January 2017.”.
10.
On 17 February 2017, the Respondent unilaterally terminated the contract in
writing. The termination letter reads inter alia as follows:
“We have been informed that you have issues concerning your health which has
effected your physical achievement. We have taken considerable time and effort
to consult with several specialists in this field with no solution to your health and
physical. As such with reference to the terms of yours Players Contract, your
duties, responsibilities has rendered your inability to perform and the team
cannot be jeopardized in their preparation and progress for the country B Super
League Football Championship.
We hereby give you notice that pursuant (…) to more specifically clause 3.3 of
[the contract], we hereby with immediate effect terminate your contract vide
Player A, from country A / Club B, from country B
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clause 8 of the contract, and hereby shall pay USD 36,000 as advance payment of
one year salary being full and final compensation sum.
Please take note we hereby terminate your contract also in accordance with
clause 4 of the Contract ie Performance Review, wherein your health has clearly
affected your physical ability and the core of the terms of your contract could not
be fulfilled by you as stipulated and agreed in the said Contract.”.
11.
On 20 February 2017, in reply to the termination letter, the Claimant sent a
correspondence to the Respondent contesting the unilateral termination and
trying to reach an amicable settlement with the Respondent, whereby giving the
latter a deadline until 22 February 2017 to reply, “whether [the Respondent]
wants to continue the labour relationship with [the Claimant] to avoid any legal
dispute”.
12.
On 29 May 2017, the Claimant lodged a claim against the Respondent before FIFA
for outstanding remuneration and compensation for breach of contract by the
club and requested the payment of a total amount of USD 132,000, amount
detailed as follows:
USD 22,000, as outstanding remuneration corresponding to the salaries of
December 2016 and January 2017, plus 5% interest p.a. as from the due
dates.
USD 110,000, as compensation for breach of contract corresponding to 10
monthly salaries from February 2017 until November 2017, plus 5% interest
p.a. as from the date of termination i.e. 17 February 2017.
13.
In support of his claim, the Claimant explained that on 20 December 2016, he
suffered from food poisoning and that he had to stay in the hospital for a few
days. Furthermore, the player stated that on 5 January 2017 he joined the
trainings again.
14.
In continuation, the Claimant referred to the club’s letter of 23 January 2017 and
held that since that date he was not allowed to train with the club. According to
the Claimant, the Respondent terminated the contract due to his food poisoning.
Indeed, according to him, the Respondent used the fact that he had fallen ill as an
excuse in order to get rid of him.
15.
Furthermore, the Claimant maintained that his contract was terminated without
just cause and that terminating his contract on basis of alleged health reasons
does not constitute a valid reason.
Player A, from country A / Club B, from country B
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16.
Moreover, the Claimant argued that clause 8 of the contract should not be
considered valid, as it is “one-sided and contradictory”.
17.
In respect of his financial claim, the Claimant acknowledged receipt of the
advance payment of USD 36,000 but held that at the date of termination, the
salaries of December 2016 and January 2017 remained outstanding.
18.
In its reply, the Respondent maintained that the player was allegedly in the
hospital until 22 December 2016 and that he had not provided a medical
certificate to the Respondent following his discharge from hospital.
19.
Thus, the Respondent declared that it was expecting the Claimant to attend
trainings following his discharge from hospital, but instead the Claimant allegedly
missed trainings on 23 and 24 December 2016 without any explanation.
20.
The Respondent further underlined that the coach reported to the management
of the club that the Claimant was in a “dubious state” and that the results of a
fitness test showed that his fitness level was “only acceptable at the minimum
requirement”.
21.
The Respondent explained that following an alleged poor performance during a
match on 16 January 2017, the coaching staff voiced its concerns to the Claimant
as to his poor performance, and the latter subsequently decided not to attend
trainings on 20 and 21 January 2017 without any explanation or authorization,
thereby violating clause 3.11 of the contract.
22.
The Respondent concludes that the Claimant did not act in a professional way,
having been absent from trainings, even though he was “fully aware that preseason training and friendly match are important to [the Respondent] in
preparing a good team for the start of the country B Super League 2017”.
23.
Furthermore, the Respondent stated the following: “The Respondent feeling
frustrated and upset with the behavior shown by the Claimant towards the
Respondent and teammates and decided to issue a letter to the Claimant on 23
January 2017 that he is not requires to attend the training and concurrently
internal disciplinary proceeding conducted to determine next course of action
against the Claimant.”.
24.
The Respondent further explained: “The Respondent’s disciplinary committee has
found that the Claimant has acted not in accordance to the Contract and fail to
show that he is determined and interested to play for the Respondent. As such,
the disciplinary committee agree to terminate the service of the Claimant with
immediate effect on 17 February 2017 in accordance to clause 5 of the contract.”.
Player A, from country A / Club B, from country B
Page 5 of 13
25.
The Respondent emphasized that the termination was done in accordance with
art. 8.4 of the contract “according to the terms and conditions that had been
agreed by both parties after both parties executed the contract.”
26.
In addition, the Respondent argued that despite all the above mentioned, it, in
good will, still agreed to pay the Claimant the amount of USD 36,000, which the
player allegedly accepted.
27.
As regards the Claimant’s claim for compensation for breach of contract, the club
argued that, based on the contract, the player was to receive a salary of USD
11,000 per month.
28.
Along this line, the club maintained that the player’s total salary is USD 132,000
(USD 11,000 x 12 months) and not USD 168,000, which the club deemed to be a
typographical error in the contract.
29.
Finally, the club maintained that it had paid USD 36,000 as advance payment,
which should be deducted from the total salary of the player as stipulated in
“Schedule B” of the contract, and as such affirmed that “it has duly paid 3 months
of the Claimant’s salary”. The Respondent, therefore, deemed that the Claimant’s
claim for the salaries of December 2016 and January 2017 “is baseless”.
30.
Furthermore, the Respondent asserted that the Claimant had signed a new
contract with the club Club C and that the DRC should reduce the player’s “loss of
income (if any)” in light of his remuneration with his new club.
31.
The player submitted his replica on 25 July 2017, i.e. after expiry of the relevant
deadline, which was set by the FIFA administration until 24 July 2017.
32.
Finally, the player informed FIFA that on 1 March 2017 he signed an employment
contract with the Club C, from country A, valid as from 1 March 2017 “until end of
2018 season” and provided a copy of said contract. Based on this document, the
Claimant was entitled to receive a monthly salary of 260,000.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 29 May 2017. Consequently, the 2017 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
Player A, from country A / Club B, from country B
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(hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21
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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2018) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a country A player and a country B 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 par. 2 of the Regulations on the Status and Transfer of Players
(editions 2016 and 2018), and considering that the present claim was lodged on
29 May 2017, the 2016 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging 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.
5.
First of all, the members of the Chamber acknowledged that the parties were
contractually bound by means of an employment contract valid as from 1
December 2016 until 30 November 2017.
6.
In this context, the Chamber took note that the Claimant lodged a claim against
the Respondent for outstanding remuneration and compensation for breach of
contract, requesting the payment of the total amount of USD 132,000. More
specifically, the Claimant indicated that by means of a letter dated 17 February
2017, the Respondent terminated the contract in writing without just cause,
which he promptly rejected on 20 February 2017. The Claimant further held that
at the moment of termination, his salaries of December 2016 and January 2017
remained outstanding, although it was noted that he acknowledged the receipt
of the advance payment of USD 36,000.
7.
Along this line, the members of the DRC duly observed that the Claimant
explained that he suffered from food poisoning on 20 December 2016 and that he
had to stay in the hospital for a few days as a consequence of this ailment and
that he was not allowed to train with the Respondent since 23 January 2017.
Player A, from country A / Club B, from country B
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Moreover, the Chamber noted that the Claimant held that the Respondent used
his illness as an excuse to get rid of him and that terminating a contract on basis
of alleged health reasons cannot constitute a valid reason to justify it.
8.
The DRC took note that the Respondent, for its part, rejected the Claimant’s
claim. In this regard, the DRC observed that the Respondent maintained that it, in
fact, had terminated the contract with just cause on 17 February 2017. In
particular, the Respondent’s argumentation in support of its position in the
current matter can be summarized as follows:
a) After his illness, the Claimant failed to provide a medical certificate to the
Respondent following his discharge. According to the Respondent, the
Claimant missed trainings on 23 and 24 December 2016 without any
explanation;
b) The coach reported to the management of the Respondent that the
Claimant’s fitness test showed that his fitness level was “only acceptable at
the minimum requirement”;
c) The coaching staff of the Respondent voiced its concerns to the Claimant
following an alleged poor performance during a match on 16 January
2017, and the latter subsequently decided not to attend trainings on 20
and 21 January 2017 without any explanation or authorization;
d) The Respondent decided to issue the letter of 23 January 2017 informing
the Claimant that he does not have to attend trainings anymore after
“feeling frustrated and upset with the behavior shown by the Claimant”.
According to the Respondent, at this point in time, it decided to conduct
internal disciplinary proceedings in order “to determine next course of
action against the Claimant.”;
e) The Respondent’s disciplinary committee decided to prematurely
terminated the contract with immediate effect as of 17 February 2017,
since, according to the Respondent, “[the Respondent]’s disciplinary
committee has found that the Claimant has acted not in accordance to the
Contract and fail to show that he is determined and interested to play for
the Respondent”.
f) That the termination of the contract was done “according to the terms
and conditions that had been agreed by both parties after both parties
executed the contract.”, and in accordance with clause 8.4 of the contract.
9.
Furthermore, it was observed by the members of the Chamber that the
Respondent held that its payment of USD 36,000, acknowledged by the Claimant
as advance payment, should be deducted from the total salary. In this regard, the
Respondent maintained that the amount of USD 168,000 stipulated in the
contract as the total salary of the Claimant for the relevant season is an alleged
typographical error, and that the Claimant’s total salary amounts to USD 132,000,
Player A, from country A / Club B, from country B
Page 8 of 13
and therefore, the Claimant’s claim in relation to the allegedly outstanding
salaries of December 2016 and January 2017 “is baseless”.
10.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant and the
allegations of both parties, was to determine whether the employment contract
had been unilaterally terminated with or without just cause by the Respondent.
The DRC also underlined that, subsequently, if it were found that the employment
contract was terminated without just cause, it would be necessary to determine
the consequences for the party that was responsible for the early termination of
the contractual relation without just cause.
11.
In continuation, the DRC recalled the content of the termination notice of the
Respondent dated 17 February 2017, which is transcribed in point I./10. above and
reverted to the Respondent’s argument that it decided to cease the employment
relationship with the Claimant since he had not acted in compliance with the
contract, by allegedly not performing to the expected performance standard,
while referring to clause 8.4 of the contract.
12.
In this context, the Chamber was keen to emphasize that, in accordance with its
longstanding and well-established jurisprudence, the unsatisfactory performance
of a player does not constitute a just cause for a club to prematurely terminate
the employment relationship, as this judgement is subjective and unmeasurable.
Thus, due to the subjective and arbitrary nature of such grounds for dismissal, the
Chamber concluded that this argument of the Respondent in order to justify the
unilateral termination of the contract could not be sustained.
13.
Moreover, the Chamber was eager to emphasise that, according to its wellestablished jurisprudence, an injury or health condition of a player can be no valid
reason to cease the payment of a player’s remuneration and even less so to
terminate an employment contract.
14.
Furthermore, the Chamber was of the unanimous opinion that it could not accept
clause 8.4 of the contract as valid in order to justify the premature termination of
the contract, since the application of the clause appears to be linked to the
player's sporting performance, which, according to the constant jurisprudence of
the DRC, cannot in itself, be considered as a valid reason for terminating an
employment contract. Consequently, the Chamber rejected the Respondent’s
argument in this regard.
15.
On account of all of the above, the members of the Chamber unanimously
reached the conclusion that the Respondent terminated the contract without just
cause on 17 February 2017.
Player A, from country A / Club B, from country B
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16.
Prior to establishing the consequences of the breach of contract without just
cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the
Chamber held that it had to address the issue of any unpaid remuneration at the
moment the contract was terminated by the Respondent.
17.
In this regard, the Chamber, 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, took due note that the Respondent had failed to
present conclusive documentary evidence demonstrating that the amount of USD
168,000, stipulated in the contract as the total salary for the season 2016-2017, is
in fact merely a typographical error, and unanimously concluded that the amount
paid to the Claimant of USD 36,000, which has been acknowledged by the latter,
refers to the amount that was supposed to be paid as advance payment in
accordance with the wording of “Schedule B” of the contract. In consequence, the
members of the Chamber deemed that the Claimant’s salary for December 2016
and January 2017, which had formally fallen due on the date of termination, had
to be awarded to the Claimant as outstanding remuneration, since the
Respondent did not present evidence of payment of these salaries.
18.
Consequently, in accordance with the principle of pacta sunt servanda, the DRC
decided that the Respondent is liable to pay the Claimant the amount of USD
22,000 as outstanding remuneration.
19.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the amounts of
USD 11,000, respectively, as of the day following the day on which said amounts
fell due.
20.
Subsequently, the Chamber focused its attention on the calculation of the amount
of compensation payable to the Claimant by the Respondent 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.
21.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by
Player A, from country A / Club B, from country B
Page 10 of 13
means of which the parties had beforehand agreed upon a compensation payable
by the contractual parties in the event of breach of contract. In this regard, the
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
22.
Subsequently, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account the remuneration
due to the Claimant in accordance with the employment contract as well as the
time remaining on the same contract, along with the professional situation of the
Claimant after the early termination occurred. In this respect, the Chamber
pointed out that the Claimant asserted that the contract was to run until 30
November 2017
23.
Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the player under the
terms of the employment contract until 30 November 2017. Consequently the
Chamber concluded that the amount of USD 110,000 (i.e. salary as from February
2017 until 30 November 2017 under the contract) serves as the basis for the
determination of the amount of compensation for breach of contract.
24.
In continuation, the Chamber remarked that the Claimant informed FIFA that
following the early termination of the employment contract at the basis of the
present dispute, he had found new employment with the Club C, from country A,
which ran as from 1 March 2017 “until end of 2018 season”, in accordance with
which he would be remunerated with a monthly salary 260,000, which
corresponds approximately to USD 46,500, for the overlapping period between
the contracts. Consequently, in accordance with the constant practice of the
Dispute Resolution Chamber and the general obligation of the Claimant to
mitigate his damages, such remuneration under the new employment contract
shall be taken into account in the calculation of the amount of compensation for
breach of contract.
25.
In view of all of the above, the Chamber decided that the Respondent must pay
the amount of USD 63,500 to the Claimant as compensation for breach of contract
without just case, which is considered by the Chamber to be a reasonable and
justified amount as compensation.
26.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 29 May 2017,
until the date of effective payment.
Player A, from country A / Club B, from country B
Page 11 of 13
27.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request filed by the Claimant is rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
USD 22,000, plus 5% interest p.a. until the date of effective payment as follows:
5% p.a. as of 8 January 2017 on the amount of USD 11,000;
5% p.a. as of 8 February 2017 on the amount of USD 11,000.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount
of USD 63,500 plus 5% interest p.a. on said amount as from 29 May 2017 until the
date of effective payment.
4.
In the event that the amounts plus interest due to the Claimant in accordance
with the above-mentioned numbers 2. and 3. are not paid by the Respondent
within the stated time limit, 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.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
Player A, from country A / Club B, from country B
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*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, from country A / Club B, from country B
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