Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 September 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (United States of America), member
Mario Gallavotti (Italy), member
Taku Nomiya (Japan), member
on the claim presented by the player,
Player A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 25 June 2014, the Player of Country B, Player A (hereinafter; the Claimant or
the player) and the Club of Country D, Club C (hereinafter; the Respondent or the
club) (hereinafter jointly referred to as the parties) concluded an employment
contract valid as of the date of its signature until 31 May 2016.
2.
On 14 July 2015, the parties concluded another employment contract valid as of
the date of its signature until 31 May 2016 (hereinafter also; the employment
contract) whereby it was agreed that the Claimant would be entitled to receive
from the Respondent, inter alia, the amount of EUR 101,000 payable in ten equal
instalments of EUR 10,100 “at the end of each month, starting on 30/08/2015 and
ending on 31/05/2016 with 60 (sixty) days grace period”.
3.
Moreover, clause 9 of the employment contract states as follows: “[The
Respondent] shall pay the player’s emoluments in the manner specified herein
with a grace period of 60 (sixty) days. In the event that the club does not make
available due payment, then the player can hold the club responsible and the
player has the right to cancel this agreement by his side and the club must pay to
the player 3 (three) compensatory payments (3 salaries)”.
4.
On 3 December 2015, the Claimant lodged a claim against the Respondent in
front of FIFA requesting as follows:
a. EUR 30,300 as outstanding remuneration regarding his salaries of
September, October and November 2015 plus 5% interest as of the due
dates;
b. EUR 60,600 as compensation for breach of contract plus 5% interest as of
the date of the claim;
c. Sporting sanctions on the Respondent.
5.
In particular, the Claimant explained that in March 2015, he suffered and injury,
reason for which he agreed to reduce his salary by signing the employment
contract dated 14 July 2015.
6.
The Claimant further exposed that since the beginning of the 2015/2016 season,
he was excluded by the Respondent and was not allowed to train with the rest of
the team. The Claimant argued that thereafter, he contacted the Football
Association of Country D to ask whether he was eligible to participate with the
club for the 2015/2016 season. In this regard, the Claimant stressed that, while
enclosing a letter from the Football Association of Country D dated 19 October
2015, the latter association informed him that he “is not registered in the list of
professional footballers above 21 years of age of the club…”
Player A, Country B / Club C, Country D
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7.
Along those lines, the Claimant explained that in accordance with the “applicable
Football Association of Country D Regulations” only players registered in the “A
or B list” are eligible to participate in the Football Association of Country D
Championships. The Claimant held that the Football Association of Country D
confirmed he was not registered in the club’s A list and that, as far as the B list,
“this is limited to the players under the age of 21. As a result, the Claimant cannot
be registered in the said B list”. What is more, according to the Claimant, he was
never informed by the Respondent that he was not going to be registered with
the club’s A list.
8.
In continuation, the Claimant argued that on 16 November 2015, he addressed a
letter to the Respondent requesting the latter to comply with its obligations.
Nevertheless, the player asserted that, on 20 November 2015, he received a letter
from the Respondent dated 30 October 2015 whereby, contrary to its request, it
terminated the employment contract due to certain disciplinary faults.
9.
In particular, the relevant parts of said letter read as follows: “…I am informing
you that the [employment contract] made between [the parties] is now
terminated by the club.
After several times of failing the coach and the directors’ instructions to have a
good corporation (sic) we cannot accept anymore actions that insult our club.
(…)
Although we try to help you to recover from your injury (…) you was (sic)
continuously ignoring [the coaches and physiotherapists] instructions (…)
Therefore, you failed the tests that was (sic) made by the coaches and in fact now
he cannot help the team at all.
Also during several training sessions your attitude inside the dressing rooms was
very rude and very unprofessional to our member staff…”
10.
In this regard, the Claimant asserted that all the allegations established in the
termination letter are untrue and that he has “never in the past been warned for
any unprofessional behaviour nor had he ever been accused for any disciplinary
offences”.
11.
Moreover, the Claimant held that at the moment of the termination, the
Respondent had only paid him his salary of August all the others remaining
outstanding.
12.
As a consequence to all the above, the Claimant alleged that the Respondent
terminated the contract without just cause and that he is therefore entitled to
receive compensation for breach of contract.
Player A, Country B / Club C, Country D
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13.
In its reply to the claim, the Respondent challenged the competence of FIFA to
deal with the present matter as “the [Football Association of Country D] is an
independent association which is the competent body to deal with the present
dispute…”
14.
As to the substance of the matter, the Respondent stressed that the Claimant was
not registered in the club’s A list because he was injured and he was therefore
“not able” to participate in any official match with the team. In this respect, the
Respondent asserted having provided the player with a recovery programme
however, the behaviour of the player was “extremely unprofessional” as he did
not follow the instructions of “coaches, doctors and physiotherapists”. To prove
its allegations, the club enclosed 4 letters allegedly issued by the club’s coach and
physical trainer during the month of October “2016” whereby the said club’s staff
reported the “unprofessional attitude” of the player. Moreover, the Respondent
enclosed another letter dated 20 October “2016” apparently addressed to the
Claimant warning him about his unprofessional behaviour. As a result of the
above, the Respondent argued that it had just cause to terminate the contract.
15.
Furthermore and in case it would be determined that the Respondent terminated
the contract without just cause, the latter argued that the Claimant would only be
entitled to three months compensation in accordance with clause 9 of the
employment contract. In this respect, according to the club, “the meaning of this
clause is that the parties agreed that in case of an earlier termination of [the
contract], then the compensation to the innocent party will be equal to three
months salary”.
16.
Along those lines, the Respondent stressed that, in accordance with the
aforementioned clause, the Claimant accepted that he would not be entitled to
“any other kind of financial compensation”.
17.
Finally, the Respondent argued that it paid EUR 2,345 for “outstanding rents” of
the player, amount which “shall [be] taken into account” when determining the
outstanding remuneration due to him.
18.
After having been requested by FIFA, the Claimant informed that he concluded a
new employment contract with the Club of Country B, Club E valid as of 1 January
2016 until 31 December 2016 and according to which, he is entitled to receive a
monthly salary of 350,000.
19.
On 5 August 2016, the FIFA administration informed the parties that the
investigation-phase of the matter at hand had been concluded and that no
further submissions from the parties would be admitted to the file.
20.
On 17 August 2016, the Claimant submitted some additional unsolicited
comments.
Player A, Country B / Club C, Country D
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21.
On 23 September 2016, the FIFA administration informed the Claimant that, in
view of the content of its letter dated 5 August 2016 and of art. 9 par. 4 of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber, it would be up to the DRC to decide whether or not to take
into account his additional unsolicited comments.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 3
December 2015. Consequently, 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 stake (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 2016), the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Player of Country B
and a Club of Country D.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies in view of the fact that “the [Football
Association of Country D] is an independent association which is the competent
body to deal with the present dispute…”.
4.
With the aforementioned considerations in mind, and prior to entering into the
analysis of its competence, the Chamber wished to recall that in accordance with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players, without
prejudice to the right of any player or club to seek redress before a civil court for
employment-related disputes, it is competent to deal with a matter such as the
one at hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players and
clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement.
5.
In relation to the above, the Chamber also deemed it vital to outline that one of
the basic conditions that needs to be met in order to establish that another
organ than the DRC can settle an employment-related dispute between a club
and a player of an international dimension, is that the competence of the
relevant arbitration tribunal, respectively national court, derives from a clear
reference in, inter alia, the employment contract at the basis of the dispute.
Player A, Country B / Club C, Country D
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6.
Therefore, while analysing whether it was competent to adjudicate the present
matter, the Dispute Resolution Chamber considered that it should, first and
foremost, analyse whether the employment contract at the basis of the present
dispute actually contained a clear and exclusive arbitration clause in favour of a
specific national dispute resolution body.
7.
With the above-mentioned considerations in mind and after a thorough analysis
of the contract at the basis of the present dispute, the members of the Chamber
concluded that said contract did not contain an arbitration clause in favour of
any national body. Therefore, the members of the Chamber came to the
unanimous conclusion that, in the present matter, one of the indispensable
requirements in order to determine that another body than the DRC is
competent to deal with an international employment-related dispute is not met.
8.
On account of all the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter has
to be rejected and that thus the Dispute Resolution Chamber is competent, on
the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of
Players, to entertain the Claimant’s claim as to the substance.
9.
Having established the above, the Chamber analysed which edition of the
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 (edition 2016) and considering
that the present claim was lodged on 3 December 2015, the 2015 edition of said
Regulations is applicable to the present matter as to the substance.
10.
The competence of the Chamber and the applicable regulations having been
established and entering into the substance of the matter, the Chamber
continued its acknowledgment of the above-mentioned facts as well as of the
documentation contained in the file. 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
substance of the matter at hand.
11.
At this point, the Chamber wished to address in the first place the admissibility
of the Claimant’s additional unsolicited comments submitted on 17 August 2016.
In this respect, the DRC wished to refer to art. 9 par. 4 of the Procedural Rules,
according to which the parties shall not be authorised to supplement or amend
their requests or their arguments, to produce new exhibits or to specify further
evidence on which they intend to rely, after the notification of the closure of the
investigation. Bearing in mind that on 5 August 2016 the FIFA administration
duly notified the parties of the closure of the investigation, the Chamber
declared that the additional unsolicited comments of the Claimant submitted on
17 August 2016 are inadmissible.
Player A, Country B / Club C, Country D
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12.
Having so found and entering into the substance of the matter, the Chamber
acknowledged that the parties entered into an employment contract valid as of
14 July 2015 until 31 May 2016 whereby it was agreed that the Claimant was
entitled to a monthly salary of EUR 10,100.
13.
Furthermore, the members of the Chamber took note that it is undisputed that
by means of its letter dated 30 October 2015, the Respondent unilaterally
terminated the contract on 20 November 2015 alleging certain disciplinary faults
on the Claimant’s part.
14.
Having said that, the members of the Chamber proceeded to analyse the claim
of the Claimant who argues that the Respondent did not have just cause to
terminate the contract. In particular, the Chamber took note that, according to
the Claimant, the Respondent’s assertions contained in the termination letter
about his “unprofessional behaviour” are untrue. Moreover, the Chamber duly
took note that, according to the Claimant, he was not registered with the club’s
A team and he only received his salary of August 2015.
15.
In continuation, the Chamber went to analyse the position of the Respondent
which, conversely, argues that it had just cause to terminate the contract as the
Claimant did not follow the instructions of the club’s coaches and
physiotherapists. According to the Respondent, the Claimant was warned about
his “unprofessional behaviour” by means of the letters described in point I./14.
ut supra.
16.
In view of the foregoing considerations, the Chamber deemed that the
underlying dispute in the matter at hand was whether the relevant employment
contract had been terminated by the Respondent with or without just cause and,
depending on this finding, it would have to determine which would be the
potential consequences of said termination.
17.
Before entering into the analysis of the parties’ position, the members of the
Chamber wished to recall certain basic principles. In particular, the members of
the Chamber highlighted that, according to art. 12 par. 3 of the Procedural Rules
any party claiming a right on an alleged fact carry the burden of proof. In casu,
the Chamber was of the unanimous opinion that the Respondent carries the
burden to proof that the “unprofessional behaviour” of the Claimant granted it
a just cause to terminate the contract.
18.
With the above in mind, the Chamber focused its attention on the warning
letters presented by the Respondent dated 5, 7, 19 and 20 October “2016” and
noted that all of them are issued by employees of the club. In this respect, the
Chamber wished to highlight that the probative value of personal statements
from employees is rather low as these cannot be considered as completely
impartial since they might be affected by diverse contextual factors. Therefore,
Player A, Country B / Club C, Country D
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the credibility of such type of internal documentation is quite limited. Moreover,
the Chamber emphasised that there is no evidence on file which can
demonstrate that said warning letters were indeed notified to the Claimant let
alone that the latter was granted the opportunity to present his position on the
content of such.
19.
Consequently, the members of the Chamber were of the unanimous opinion that
the Respondent failed to prove, at its satisfaction, the Claimant’s alleged
“unprofessional behaviour”.
20.
In any case, the DRC wished to recall its long standing and well-established
jurisprudence which dictates that only a breach or misconduct which is of a
certain severity justifies the termination of a contract without prior warning. In
other words, only when there are objective criteria which do not reasonably
permit to expect a continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken, such measures must be taken before
terminating an employment contract. A premature termination of an
employment contract can always only be an ultima ratio. In casu, in the DRC’s
view, there were more lenient measures which the Respondent could have taken
in case it was of the understanding that the Claimant was acting in an
“unprofessional” manner.
21.
On account of all the aforementioned circumstances, the Chamber concluded that
the Respondent did not have just cause to terminate the contract on 20 November
2015 and therefore, it should be held liable for the consequences thereof. As such,
the Chamber went on to deal with the consequences of the early termination of
the employment contract without just cause by the Respondent.
22.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per the contract in accordance with the general legal
principle of pacta sunt servanda. In this respect, the DRC pointed out that the
Respondent is not disputing having failed to pay the Claimant his salaries of
September and October 2015. The Chamber decided thus that the Respondent is
liable to pay to the Claimant the remuneration that was outstanding at the time
of the termination of the contract i.e. EUR 20,200 corresponding to the Claimant’s
salaries of September and October 2015.
23.
In addition, taking into consideration the player’s claim as well as the Chamber’s
jurisprudence, the members of the DRC decided to award interest on said
amounts at the rate of 5% p.a. as of the respective due dates.
24.
In continuation, the Chamber decided that, taking into consideration art. 17 par.
1 of the Regulations, the Claimant is entitled to receive from the Respondent
Player A, Country B / Club C, Country D
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compensation for breach of contract in addition to any outstanding salaries on
the basis of the relevant employment contract.
25.
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.
26.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a compensation payable
by the contractual parties in the event of breach of contract. In this regard, the
Chamber acknowledged that clause 9 of the employment contract provides as
follows: “[The Respondent] shall pay the player’s emoluments in the manner
specified herein with a grace period of 60 (sixty) days. In the event that the club
does not make available due payment, then the player can hold the club
responsible and the player has the right to cancel this agreement by his side and
the club must pay to the player 3 (three) compensatory payments (3 salaries)”.
27.
Along those lines, the Chamber duly noted that, according to the Respondent,
any payable compensation should be awarded in accordance with said clause.
Nevertheless, the members of the Chamber unanimously concluded that they
could not take such clause into account in order to determine the payable
compensation for breach of contract as the scenario foreseen in said clause is not
applicable in the matter at hand. Indeed, it was not the Claimant but the
Respondent which terminated the contract.
28.
As a consequence, the members of the Chamber determined that the prejudice
suffered by the Claimant in the present matter had to be assessed in application
of the other parameters set out in art. 17 par. 1 of the Regulations. In this regard,
the DRC 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, as well as
the Chamber’s specific knowledge of the world of football and its experience
gained throughout the years.
29.
With the aforementioned in mind, 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,
along with the professional situation of the player after the early termination of
the contract occurred. In this respect, the Chamber pointed out that the
Player A, Country B / Club C, Country D
Page 9 of 11
remaining value of the contract which was breached as from its early termination
by the Respondent until its regular expiry amounts to EUR 70,700, comprised of
his salaries as of November 2015 until May 2016. The Chamber concluded that this
amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
30.
In continuation, the Chamber recalled that the Claimant had entered into a new
employment contract with the Club of Country B, Club E valid as of 1 January
2016 until 31 December 2016 whereby it was agreed that he is entitled to a
monthly remuneration of 350,000, which in turn equals to roughly EUR 30,000.
31.
In view of all of the above, the Chamber first pointed out that, in principle, the
Claimant’s new contract is of a higher value than his previous contract.
Nevertheless, the Chamber stressed that the Claimant was de facto prevented
from mitigating his damages during the months of November and December 2015
as the player’s new employment contract started only as of January 2016. As a
consequence, the DRC decided that the Respondent must pay the amount of EUR
20,200 to the Claimant as compensation for breach of contract, which is
considered by the Chamber to be a reasonable and justified amount, as well as
5% interest p.a. over said amount as from the date of the claim, i.e. 3 December
2015, until the date of effective payment.
32.
Finally, the Chamber concluded its deliberations by establishing that any further
requests by the parties are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as
from the date of notification of this decision, outstanding remuneration in the
amount of EUR 20,200 plus 5% interest p.a. until the date of effective payment as
follows:
a. 5% p.a. on the amount of EUR 10,100 as of 1 October 2015;
b. 5% p.a. on the amount of EUR 10,100 as of 1 November 2015.
4.
The Respondent is ordered to pay to the Claimant, within 30 days as from the
date of notification of this decision, compensation for breach of contract in the
amount of EUR 20,200 plus 5% interest p.a. as of 3 December 2015 until the date
of effective payment.
5.
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
Player A, Country B / Club C, Country D
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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 is rejected.
7.
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.
*****
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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