Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 14 September 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Jérôm e Perlem uter (France), member
Elv is Chetty (S ey chelles ), member
S tefano S artori (Italy ), member
Takuy a Yam azaki (Japan), member
on the claim presented by the player,
Club A, from country A
as Claimant / Counter-Respondent I
against the club,
Club B , from country B
as Respondent / Counter-Claimant
and the club,
Club C, from country A
as Counter-Respondent II
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 30 July 2015, the Player A, from country A (hereinafter: the Claimant / CounterRespondent I), and the Club B, from country B(hereinafter: the Respondent /
Counter-Claimant), signed an employment contract (hereinafter: the contract) valid
from 1 July 2015 until 30 June 2020.
2.
Under the terms of Clause 2 of the contract, the Claimant / Counter Respondent I
was entitled to receive, inter alia, “by the 8th of the month subsequent to that to
which it relates”, gross monthly remuneration of EUR 81,000, totalling EUR 972,000
(i.e. 12 x EUR 81,000) for each season from 2015-2016 to 2019-2020.
3.
The contract provides in its clause 14 that “if the [Claimant / Counter Respondent I]
unilaterally rescinds without fair grounds the present sports employment contract
or [the Respondent / Counter-Claimant] promotes his dismissal invoking fair
grounds, the former is required to pay compensation pertaining to the value of the
remunerations which would be due if the contract had ended upon its termination
and also payment, by way of a penalty clause, of the sum of € 30,000,000, exc. VAT,
(where due), without prejudice to the application of sports’ sanctions by the
relevant national and international entities”.
4.
The contract equally provides in its clause 15 that “the [Claimant / Counter
Respondent I] may enforce the unilateral rescission of the present contract, without
the need to invoke fair grounds provided that he firstly observes the following
conditions […] the rescission must be carried out during one of the registration
periods foreseen in national sports’ regulations, with the exception of the first
occurring in the first season, and the [Claimant / Counter Respondent I] must send
written notification expressing this intention, giving 15 days’ notice prior to the
date on which its effects are to begin […] immediate payment must be made to [the
Respondent / Counter-Claimant] of the sum of € 30,000,000, plus VAT at the legal
rate […]”.
5.
The contract finally provides in its clause 18 that “this contract must be interpreted
in accordance with FIFA regulations” and that “the contracting parties herein agree
to select, as the case may be, the Player Status Committee, the Dispute Settlement
Chamber and the Court of Arbitration for Sport in Lausanne, waiving any other
jurisdictional body, however appropriate it may be, as the competent body to settle
any queries, procedures or controversies arising out of the present contract”.
6.
During the 2015-2016 sporting season, the Claimant / Counter Respondent I had two
disciplinary issues “one as a consequence of a miss-behavior whilst at the service of
the U-19 National team of country A and another as a consequence of having been
caught speed driving”. According to the Claimant / Counter Respondent I, “both
cases were solved with the imposition of simple fines”.
Player A, from country A / Club B, from country B / Club C, from country A
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7.
On 25 August 2016, the Respondent / Counter-Claimant notified the Claimant /
Counter Respondent I with a “notice of fault” (hereinafter: notice of fault), which
refers to an internal “disciplinary proceeding with the intention of dismissal”
against the Claimant / Counter Respondent I, suspending him “from this date until
notice to the contrary is served” and granting him 10 days to respond to the
charges. The Respondent / Counter-Claimant appointed for such purpose two
lawyers as “reporters” to lead the disciplinary proceeding.
8.
According to the Respondent / Counter-Claimant’s statement in the disciplinary
proceedings, the Respondent / Counter-Claimant accused the Claimant / Counter
Respondent I of numerous disciplinary infringements. The Claimant / Counter
Respondent I submitted his response to the charges, which was received and
admitted to the case.
9.
On 7 November 2016, the Claimant / Counter Respondent I filed an injunction
before the Labour Common Courts of country B “in order to have [the Respondent /
Counter-Claimant] forced to reintegrate him at its service”, which was rejected by
said Court.
10.
On 25 November 2016, the Respondent / Counter-Claimant notified the Claimant /
Counter Respondent I of its amendment to its statement in the internal disciplinary
proceeding, following an alleged involvement of the Claimant / Counter
Respondent I in a brawl in a night club. On 7 December 2016, the Claimant /
Counter Respondent I submitted his respective position - which was also received
and admitted to the case - and rejected “the veracity of such news”.
11.
On 8 February 2017, the Respondent / Counter-Claimant formally notified the
Claimant / Counter Respondent I of the unilateral termination of the employment
contract in writing based on the final recommendation of the ”instruction officer of
the proceeding” appointed by the Respondent / Counter-Claimant and dated 2
February 2017.
12.
On 26 July 2017, the Claimant / Counter Respondent I lodged a claim before FIFA,
asserting that the Respondent / Counter-Claimant “has unlawfully breached the
contract, by having unilaterally terminated it without just cause during the
protected period”. What is more, the Claimant / Counter Respondent I asks to be
awarded payment of EUR 3,564,000, amount composed as follows:
a. Outstanding remuneration of EUR 21,600 “concerning his eight days of
work in February 2017”, plus 5% interest p.a. over said amount “as from
the date when it became due”;
b. Compensation for breach of contract of EUR 3,299,400, “corresponding to
all the remaining salaries to which he was contractually entitled to receive
as from 9 February 2017 until the end of the Contract”;
Player A, from country A / Club B, from country B / Club C, from country A
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c. “an extra financial compensation” in the amount of EUR 243,000,
corresponding to three monthly salaries”;
13.
Finally, the Claimant / Counter Respondent I asks FIFA to impose sporting sanctions
on the Respondent / Counter-Claimant.
14.
According to the Claimant / Counter Respondent I, he was instructed by the
Respondent / Counter-Claimant at the beginning of the 2016-2017 season “to train
apart from its second team […] allegedly with the single aim of losing weight and
getting physically fitter”. According to the Claimant / Counter Respondent I, he
returned from his summer holidays weighting 73.9 kg, whereas his alleged ideal
weight would be 71.8 kg, “therefore with an extra 2.1 kg”.
15.
The Claimant / Counter Respondent I asserts that the Respondent / CounterClaimant charged him with “several alleged disciplinary infringements, namely but
not limited to miss conducts at the training sessions and at its medical station,
constant refusals to measure his weight and/or his skinfolds (fat mass), lack of
commitment at the training sessions, unjustified absences and even damaging
training equipment”.
16.
According to the Claimant / Counter Respondent I, “[the Respondent / CounterClaimant] was the sole party which contributed to its own unilateral contractual
termination and that such conduct was mainly due to (1) the [Claimant / Counter
Respondent I]’s non-participation in any matches with its first team i.e. the fact that
he did not sportingly performed as expected and (2) the financial and consequently
legal dispute before CAS between the company belonging to the [Claimant /
Counter Respondent I]’s father and [the Respondent / Counter-Claimant] concerning
the payment of € 500,000 due for his image rights”. The Claimant / Counter
Respondent I claims in this regard, that his “outcast since the beginning of the 20162017 sporting season […] is a personal vendetta for the dispute involving the
company and his family” and that it was a “pure retaliation for the conflict
generated with the company”.
17.
The Claimant / Counter Respondent I further affirms that despite having been
isolated by the Respondent / Counter-Claimant, he kept on training “with the clear
intention of joining any of the club’s football teams”.
18.
Furthermore, in response to the disciplinary charges, the Claimant / Counter
Respondent I claims that “most of the charges were based on false and nonsustained facts, others were clearly taken out of context, manipulated or
exaggerated and frequently showing only one version of the facts”. Moreover, the
Claimant / Counter Respondent I considers that “even some slight infringements
that may have naturally occurred – particularly if taken into consideration the
context of training alone three times a day without a football and so on – are by far
Player A, from country A / Club B, from country B / Club C, from country A
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[not] serious enough for [the Respondent / Counter-Claimant] to terminate the
contract” and underlines the existence “of other less drastic disciplinary sanctions
that could be imposed on the [Claimant / Counter Respondent I], such as fines”.
19.
In addition, the Claimant / Counter Respondent I points out that he filed an
injunction before the Labour Common Courts of country B in order to force the
Respondent / Counter-Claimant to reintegrate him on the team but such request
was rejected on 9 November 2016 by said Court.
20.
Regarding his alleged participation in a brawl in a night club, the Claimant /
Counter Respondent I affirms that he was not present in said night club and
explains that he was resting at home. The Claimant / Counter Respondent I claims
that his friends “who were on holidays in country B, had been assaulted in the
street and arrived to his place asking for help, having consequently taken them to
the hospital”.
21.
Finally, the Claimant / Counter Respondent I insists that the Respondent / CounterClaimant “based its contractual termination on alleged disciplinary infringements
that are (1) irrelevant or of minor importance, (2) manipulated, taken out of context
and sustained by non-impartial testimonies and finally (3) absolutely false facts
published by some Media”.
22.
In its reply to the claim, the Respondent / Counter-Claimant contested FIFA’s
competence to hear the claim brought by the Claimant / Counter Respondent I.
According to the club, “the termination of the employment relationship conducted
by [the Respondent / Counter-Claimant] derives from the disciplinary proceeding
instituted against [the Claimant / Counter Respondent I]”. In this regard, the
Respondent / Counter-Claimant claims that ”the disciplinary proceeding has been
substantiated on the provisions of the country B Employment Code (and not under
the FIFA Regulations)”. What is more, the Respondent / Counter-Claimant claims
that “the Employment Code constitutes the regulatory framework of mandatory
observance” and states that “the own acts of the [Claimant / Counter Respondent I]
categorically confirm the application to the Claim of the country B national labour
legislation”. According to the Respondent / Counter-Claimant, the Claimant /
Counter Respondent I “must resort to the national labor Courts of country B as
provided in Article 387.2 of the Employment Code”.
23.
In addition, the Respondent / Counter-Claimant affirms that the claim of the
Claimant / Counter Respondent I is time-barred and that the latter “should have
observed the procedural time-limits prescribed in Article 387.2 of the Employment
Code” given the fact that he “expressly accepted that the Employment Code of
country B was applicable to the disciplinary proceeding instituted by [the
Respondent / Counter-Claimant]”.
Player A, from country A / Club B, from country B / Club C, from country A
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24.
Furthermore, the Respondent / Counter-Claimant lodged a counterclaim against the
Claimant / Counter Respondent I and the Claimant / Counter Respondent I’s new
club, Club C, from country A (hereinafter: the Counter-Respondent II), on the basis
of the Claimant / Counter Respondent I’s alleged “severe and continuous breaches
of the contract” that led the Respondent / Counter-Claimant to “terminate with just
cause” the contract on 8 February 2017.
25.
In this regard, the Respondent / Counter-Claimant claims to be entitled to the
following amounts as compensation for breach of contract, plus 5% interest p.a.
“from the early termination of the contract, this is, on February 8 th 2017”:
a. EUR 3,321,000 corresponding to “the remaining retribution from February
2017 until June 2020”;
b. EUR 30,000,000 corresponding to the penalty clause in accordance with
Clause 14 of the contract, “plus the VAT applicable to the penalty”.
26.
The Respondent / Counter-Claimant also claims, “should this Chamber consider that
the compensation claimed (i.e. EUR 33,321,000 plus the applicable VAT) is excessive
and therefore said amount should be reduced”, that “the compensation to be paid
should not be lesser than the following sums”:
a. EUR 3,321,000, corresponding to “the remaining retribution from February
2017 until June 2020”;
b. EUR 1,500,000, corresponding to the transfer fee paid by the Respondent /
Counter-Claimant to Club D, from country A for the Claimant / Counter
Respondent I;
c. EUR 200,000, corresponding to the Commission fee paid to
Sportmanagement company;
d. EUR 1,550,200, corresponding to “the Remuneration paid to [Claimant /
Counter Respondent I]”;
e. EUR 1,500,000 as “Specificity of Sport […] [the Respondent / CounterClaimant] has not been able to obtain a profit benefit derived from his
subsequent transfer”;
f. “In the solely and exclusive event that the CAS condemns [the Respondent /
Counter-Claimant] to pay Sporting X an amount which derives from the
Image Rights Agreement, then said amount should be included in the
expenses incurred by [the Respondent / Counter-Claimant] in the hiring of
the [Claimant / Counter Respondent I]”.
27.
Furthermore, the Respondent / Counter-Claimant also requests sporting sanctions to
be imposed on the Claimant / Counter Respondent I in accordance with art. 17.3 of
the FIFA RSTP.
Player A, from country A / Club B, from country B / Club C, from country A
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28.
Moreover, the Respondent / Counter-Claimant contests that the Claimant / Counter
Respondent I’s dismissal “was a result of a vendetta of [the Respondent / CounterClaimant] against the [Claimant / Counter Respondent I] in view of the claim
brought by Sporting X against [the Respondent / Counter-Claimant] before the
Court of Arbitration for Sport”.
29.
According to the Respondent / Counter-Claimant, the Claimant / Counter
Respondent I’s “reiterative gross misconduct” has led to the “irrevocable
termination with just cause of the contractual relationship”. the Respondent /
Counter-Claimant claims that the Claimant / Counter Respondent I “was expelled
from the national team for his bad behavior” on November 2015 and that he
“accepted the sanction imposed on him, i.e. a deduction from player’s salary on the
amount of EUR 17,781)”. What is more, the Respondent / Counter-Claimant states
that on 27 November 2015 the Claimant / Counter Respondent I “was caught in
country Y driving at 230 km/h and without driving license”.
30.
The Respondent / Counter-Claimant also states that on 30 June 2016, the Claimant /
Counter Respondent I returned from his holidays and “showed excess of weight and
fat mass”. The Respondent / Counter-Claimant further states that it designed a work
plan for the Claimant / Counter Respondent I and that on 24 July 2016, “more than
three weeks later of the medical tests, the [Claimant / Counter Respondent I] had a
weight of 73.9 kg, 2.1 kg more than the fixed target (71.8 kg)”. According to the
Respondent / Counter-Claimant, “the [Claimant / Counter Respondent I] not only
has never been close to his target weight but also his weight even increased
reaching a weight of 74.8 kg”. In addition, the Respondent / Counter-Claimant
claims that “the deplorable physical condition of [the Claimant / Counter
Respondent I] and his unprofessional behavior constitute a breach of his essential
obligation”.
31.
The Respondent / Counter-Claimant further states multiple alleged misconducts of
the Claimant / Counter Respondent I during training that occurred on the following
dates:
-
-
-
On 30 July 2016, the Claimant / Counter Respondent I allegedly “without
permission and disobeying the orders of Mr H [i.e. the Respondent / CounterClaimant’s physical trainer] – interrupted the exercise to drink water and after
that, he unjustifiably abandoned the training session during twenty-five
minutes” and “refused without permission to be weighed”;
On 1 August 2016, the Claimant / Counter Respondent I allegedly “did not
perform specific exercises and he even boasted of that” and “refused to allow
the medical department to measure his weight”;
On 2 August 2016, according to the Respondent / Counter-Claimant, “the
abovementioned conduct of the [Claimant / Counter Respondent I] became a
Player A, from country A / Club B, from country B / Club C, from country A
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-
-
-
-
-
-
routine” and he allegedly “adopted a defiant and provocative attitude towards
Mr H” and “refused to allow the medical department to measure his weight”;
On 3 August 2016, according to the Respondent / Counter-Claimant, the
Claimant / Counter Respondent I “alleged a back pain but he did not attend
the Medical Centre of for an examination to set the proper treatment” and
allegedly insulted the Respondent / Counter-Claimant and refused to be
weighted again;
On 5 August 2016, the Claimant / Counter Respondent I allegedly “arrived at
the training session twenty-five minutes late” and “was aggressive, angrily
insulting Mr H” and refused to be weighted. On the same day, the Respondent
/ Counter-Claimant initiated “an inquiry investigation against the [Claimant /
Counter Respondent I] following the several reports and notices of the
professional football department, lab and Medical Department of the club”;
On 6 August 2016, according to the Respondent / Counter-Claimant, “the
[Claimant / Counter Respondent I] did not attend the training session of August
6th, 2016 due to his car caught fire”;
On 9 August 2016, “without [the Respondent / Counter-Claimant]’s
permission”, the Claimant / Counter Respondent I allegedly “did not attend the
training session of August 9th 2016” because of a “problem related with the
fire of his car”;
On 10 and 11 August 2016, the Claimant / Counter Respondent I allegedly
“trained with his regular very low intensity”, “adopted an unacceptable
conduct towards Mr H” and refused to be weighted again;
On 12, 15, and 16 August 2016 respectively, the Claimant / Counter Respondent
I allegedly did not attend a training session;
On 17 August 2016, the Claimant / Counter Respondent I allegedly “trained
with his usual very low intensity”, “adopted an intimidatory and aggressive
conduct before Mr H” and refused to be weighted.
32.
According to the Respondent / Counter-Claimant, the Claimant / Counter
Respondent I was also “part of a quarrel involving knives during a night out in a
discotheque in country B, in the company of friends being that one of his friends
was injured and needed hospital care”.
33.
In this regard, the Respondent / Counter-Claimant underlines that “under these
circumstances, it is unquestionable that the reiterative breaches of his fundamental
obligations and duties prevented [it] to expect a continuation of the employment
relationship between the parties as result of the serious breach of confidence”.
34.
the Respondent / Counter-Claimant further claims that it “appointed an
independent law firm as instruction officer of the disciplinary proceeding” against
the Claimant / Counter Respondent I and that “the independent instruction officer
Player A, from country A / Club B, from country B / Club C, from country A
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at all times conducted the disciplinary proceeding with the purpose of clarifying the
facts and always respecting all the procedural rights and guaranties of the [Claimant
/ Counter Respondent I]”.
35.
Finally, the Respondent / Counter-Claimant affirms that on 3 February 2017, the
instruction officer issued a final report allegedly substantiated “with clear and
convincing evidence” and that “the flagrant and deplorable conduct of the
[Claimant / Counter Respondent I] caused the irrevocable termination with just
cause of the employment contract with effect from February 8th 2017”.
36.
In his reply to the counter-claim lodged against him and with regard to the issue of
FIFA’s competence, the Claimant / Counter Respondent I refers to art. 18 of the
contract and states that such article, “being an arbitration clause – undoubtedly
stipulates that the contracting parties agree to select […] the Dispute Resolution
Chamber […] waiving any other jurisdictional body […] as the competent body to
settle any queries, procedures or controversies arising out of the present contract”.
37.
Furthermore, the Claimant / Counter Respondent I affirms that the injunction he
filed in front of the Labour Common Courts of country B “does not waive the DRC’s
jurisdiction over the present matter, since we are facing a completely different legal
and factual context” and that FIFA has jurisdiction to hear the dispute at hand.
38.
Moreover, the Claimant / Counter Respondent I reiterates his argumentation and
claims that “the instruction officer in charge of the disciplinary proceedings is not
by far an independent law firm” since the latter allegedly “provides legal
consultancy and legally represents [the Respondent / Counter-Claimant] in many
matters and disputes”.
39.
In relation with his disciplinary infringements in November 2015, the Claimant /
Counter Respondent I emphasizes that “none of such episodes [cf. point I.7 above]
occurred whilst at the club’s service nor in country B” and concludes that “definitely
none of them [is] relevant enough, by far, to have seriously contributed to the
unilateral contractual termination or even to have affected the parties’ relationship,
if it would not have been for the obvious conflict involving [the Respondent /
Counter-Claimant] and the company belonging to the [Claimant / Counter
Respondent I]’s father”.
40.
Despite having been invited to do so, the Counter-Respondent II, did not reply to
the Respondent / Counter-Claimant’s counter-claim.
41.
In response to FIFA’s request, the Claimant / Counter Respondent I indicated that he
had signed an employment contract with the Counter-Respondent II, valid from 1
July 2017 until 30 June 2019, providing for the payment of a gross monthly salary of
EUR 9,000.
Player A, from country A / Club B, from country B / Club C, from country A
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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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 26 July 2017.
Consequently, the Rules Governing the procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2017; 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 June 2018) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a country A Player, a country B
club and a country A club.
3.
However, the Chamber acknowledged that the Respondent / Counter-Claimant
contested the competence of FIFA’s deciding bodies on the basis of art. 387.2 of the
Employment Code of country B stating that “the termination of the employment
relationship conducted by [the Respondent / Counter-Claimant] derives from the
disciplinary proceeding instituted against [the player]” and that “the disciplinary
proceeding has been substantiated on the provisions of the Employment Code of
country B and not under the FIFA Regulations”. In this regard, the Respondent /
Counter-Claimant claims that under laws and regulations of country B, employmentrelated disputes fall within the compulsory jurisdiction of the “national labour
Courts of country B”.
4.
Equally, the Chamber noted that the Claimant / Counter Respondent I rejected such
position and insisted that FIFA has jurisdiction to deal with the present matter on
the basis of art. 22 b) of the Regulations as well as clause 18 of the contract.
5.
In this context, and as a preliminary remark, the DRC wished to recall its well
established and longstanding jurisprudence which dictates that when deciding a
dispute before the DRC, FIFA’s regulations prevail over any national law chosen by
Player A, from country A / Club B, from country B / Club C, from country A
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the parties. In this regard, the Chamber emphasised that the main objectives of the
FIFA regulations is to create a standard set of rules to which all the actors within the
football community are subject to and can rely on. This objective would not be
achievable if the DRC would have to apply the national law of a specific party on
every dispute brought to it. This should apply, in particular, also to the termination
of a contract. In this respect, the DRC underlined that it is in the interest of football
that the termination of contract is based on uniform criteria rather than on
provisions of national law that may vary considerably from country to country.
Therefore, the Chamber deems that it is not appropriate to apply the principles of a
particular national law to the termination of a contract but rather the Regulations,
general principles of law and, where existing, the Chamber’s well-established
jurisprudence.
6.
In view of the above, the Chamber referred to the contents of the employment
contract concluded between the Claimant / Counter Respondent I and the
Respondent / Counter-Claimant, and in particular to clause 18 of the contract
according to which “the contracting parties herein agree to select, as the case may
be, the Player Status Committee, the Dispute Settlement Chamber and the Court of
Arbitration for Sport in Lausanne, waiving any other jurisdictional body, however
appropriate it may be, as the competent body to settle any queries, procedures or
controversies arising out of the present contract”.
7.
In this regard, the Chamber noted that there is no jurisdiction clause in the contract
in favor of the “national labour Courts of country B”. Equally, the Chamber
highlighted that clause 18 of the contract explicitly mentions that FIFA is competent
“to settle any queries, procedures or controversies arising out of the present
contract”. Therefore, the Chamber deemed that the employment contract at the
basis of the dispute contained a clear choice of jurisdiction in favor of the FIFA DRC
and concluded that, in accordance with clause 18 of the contract, the parties had
agreed upon FIFA’s dispute resolution system in case of potential disputes.
8.
As a result, the Chamber established that the Respondent / Counter-Claimant’s
objection towards the competence of FIFA has to be rejected and that the DRC is
competent, on the basis of art. 22 lit. b) of the Regulations and clause 18 of the
contract, to adjudicate on the present matter. Consequently, the claim of the
Claimant / Counter Respondent I is admissible.
9.
In continuation, and before being able to enter into the substance of the matter,
the Chamber needed to verify whether the competent FIFA body could deal with
this affair or not for formal reasons, in particular with respect to the Respondent /
Counter-Claimant’s objection that the claim is to be considered as time-barred.
10.
In this respect, the members of the Chamber referred to art. 25 par. 5 of the
Regulations on the Status and Transfer of Players (edition June 2018) which, in
Player A, from country A / Club B, from country B / Club C, from country A
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completion to the general procedural terms outlined in the Procedural Rules, clearly
established that the decision-making bodies of FIFA shall not hear any dispute if
more than two years have elapsed since the event giving rise to the dispute arose
and that the application of this time limit shall be examined ex officio in each
individual case.
11.
In view of the above, the DRC came to the conclusion that the event giving rise to
the present dispute took place on 8 February 2017, i.e. on the date of termination
of the contract. In this regard, the DRC considered that the claim of the Claimant /
Counter Respondent I has to be considered as not barred by the statute of
limitations in application of art. 25 par. 5 of the Regulations on the Status and
Transfer of Players (edition June 2018), in view of the fact that the present claim
was lodged on 26 July 2017, thus within the time limit of two years since the event
giving rise to the dispute. As a result, the Chamber rejected the the Respondent /
Counter-Claimant’s objection.
12.
Subsequently, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (2016 and
2018 editions), and considering that the present claim was lodged on 26 July 2017,
the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
13.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In this respect, the Chamber
started by acknowledging all the above-mentioned facts as well as the arguments
and the documentation submitted by the parties. However, the Chamber
emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence which it considers pertinent for the
assessment of the matter at hand.
14.
The Chamber first of all duly noted that on 30 July 2015, the parties entered into an
employment contract valid as from 1 July 2015 until 30 June 2020. The DRC noted
that according to the contract, the Claimant / Counter Respondent I was entitled to
receive, inter alia, a remuneration of EUR 972,000, distributed in 12 monthly salaries
of EUR 81,000 for each sporting season from 2015-2016 to 2019-2020.
15.
Moreover, the Chamber noticed that it was undisputed by the parties that the
aforementioned employment contract was unilaterally terminated by the
Respondent / Counter-Claimant on 8 February 2017 following a disciplinary
proceeding held against the Claimant / Counter Respondent I.
16.
The Chamber further observed that the Claimant / Counter Respondent I lodged a
claim against the Respondent / Counter-Claimant maintaining that the latter had
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terminated the contract without just cause by means of its correspondence dated 8
February 2017. In this respect, the Claimant / Counter Respondent I emphasised that
the reasons put forward by the Respondent / Counter-Claimant do not constitute a
just cause to terminate an employment contract. 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 I and the CounterRespondent II, asserting that it had just cause to terminate the contract on 8
February 2017 due to the Claimant / Counter Respondent I’s continuous breaches of
the contract.
17.
In this context, the members of the DRC noted that the Claimant / Counter
Respondent I stated having been instructed by the Respondent / Counter-Claimant
to train apart from the team at the beginning of the 2016-2017 season “with the
single aim of losing weight and getting physically fitter” and admitted that he
returned from his summer holidays with an extra weight of 2.1 kg.
18.
Furthermore, the DRC noted that the Claimant / Counter Respondent I affirmed that
he kept on training despite having been isolated by the Respondent / CounterClaimant. Moreover, the Claimant / Counter Respondent I stated that the
Respondent / Counter-Claimant accused him of numerous disciplinary
infringements, in particular misconducts and lack of commitment at the training
sessions and at the medical facilities, refusals to measure his weight and his
skinfolds, unjustified absences and destruction of training equipment. In this regard,
the Claimant / Counter Respondent I held that most of the charges against him were
based on false and non-sustained facts and other were taken out of context or
exaggerated.
19.
In continuation, the Chamber observed that the Claimant / Counter Respondent I
deemed that considering his situation and the fact that he had to train alone for a
long period of time without practicing football, “even some slight infringements
that may have occurred during training sessions are by far not serious enough for
the club to terminate the contract”. The DRC further noted that according to the
Claimant / Counter Respondent I, other less drastic measures should have been
imposed on him instead, such as fines.
20.
Subsequently, the members of the DRC took note that the Respondent / CounterClaimant, on its part, stated that the Claimant / Counter Respondent I’s continuous
breaches of his contract had led it to open a disciplinary proceeding against him on
25 August 2016 and that based on the final recommendation of the disciplinary
committee, it deemed that it had just cause to terminate the contract on 8 February
2017.
21.
In continuation, the DRC observed that the Respondent / Counter-Claimant accused
the Claimant / Counter Respondent I of numerous disciplinary infringements. More
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specifically, the Respondent / Counter-Claimant recalled that in November 2015, the
club imposed a fine on the Claimant / Counter Respondent I for having been
expelled from the U-19 national team of country A. Furthermore, the Respondent /
Counter-Claimant stated that the Claimant / Counter Respondent I was also caught
speed driving without a driving licence on 27 November 2015. Moreover, the
Respondent / Counter-Claimant held that the Claimant / Counter Respondent I’s
behaviour was unsatisfactory, since he showed lack of discipline at work and had a
“deplorable physical condition”. The members of the DRC also noted that the
Respondent / Counter-Claimant reported several alleged misconducts of the
Claimant / Counter Respondent I during training sessions (cf. point I.31 above).
22.
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.
23.
As a consequence of the above, the Chamber duly noted that it had to examine
whether or not the Claimant / Counter Respondent I’s alleged misconducts, under
the given circumstances, justified the termination of the contract by the Respondent
/ Counter-Claimant on 8 February 2017.
24.
In this respect, the DRC started by acknowledging that it is undisputed that the
Claimant / Counter Respondent I had two disciplinary infringements in November
2015, which had been solved with the imposition of fines.
25.
Furthermore, the members of the DRC also noted that it is undisputed that the
Claimant / Counter Respondent I was instructed by the Respondent / CounterClaimant at the beginning of the 2016-2017 sporting season to train apart from the
rest of the team in order for him to improve his physical condition.
26.
The Chamber further observed that the Respondent / Counter-Claimant insisted that
it had terminated the contract with just cause, on the basis of the Claimant /
Counter Respondent I’s alleged “sever and continuous breaches of the contract”.
27.
Bearing in mind the aforementioned arguments presented by all parties, the
members of the DRC deemed it appropriate to recall the general principle of
burden of proof stipulated in art. 12 par. 3 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.
28.
In this context, the DRC analysed the Respondent / Counter-Claimant’s assertion that
the Claimant / Counter Respondent I’s “deplorable physical condition” and
“unprofessional behaviour”, in particular the fact that he trained “with very low
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intensity” constitute another breach of his employment contract. In this context, the
Chamber was keen to emphasize that, in accordance with its longstanding and wellestablished jurisprudence, the unsatisfactory performance of a player, in this case,
the fact that he trained “with very low intensity” 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 / Counter-Claimant in order to justify the unilateral termination of the
contract could not be sustained.
29.
Subsequently, the Chamber observed that the Respondent / Counter-Claimant did
not provide conclusive evidence regarding the Claimant / Counter Respondent I’s
alleged “reiterative gross misconduct” in particular towards the club’s physical
trainer, Mr H or regarding the Claimant / Counter Respondent I’s alleged
participation in a brawl in a night club, which facts were contested by the Claimant /
Counter Respondent I. Consequently, the Chamber decided that the Respondent /
Counter-Claimant’s arguments in this regard could not be upheld.
30.
Furthermore, with regards the Claimant / Counter Respondent I’s alleged
unauthorized absences during the training sessions, the Chamber wished to
emphasise that a 5 days’ absence of a player, even if duly corroborated with
relevant document, which is not the case in the matter at hand, cannot be
considered a just cause to terminate a contract, particularly without any previous
warning.
31.
In this regard, the Chamber wished to refer to its well-established jurisprudence by
means of which it has been established that only a breach or misconduct which is of
a certain severity justifies the termination of a contract. In other words, only when
there are objective criteria which do not reasonably permit to expect a continuation
of the employment relationship between the parties, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken in order
for an employer to ensure the employee’s fulfilment of his contractual duties, such
measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
32.
In view of the above, the Chamber was of the firm opinion that the Respondent /
Counter-Claimant did, in any case, not have just cause to prematurely terminate the
employment contract with the Claimant / Counter Respondent I, since the fact that
the Claimant / Counter Respondent I had allegedly trained with low intensity or the
fact that he was slightly overweight or missed a couple of training sessions could
not legitimately be considered as being severe enough to justify the termination of
the contract. In particular, the Chamber was eager to emphasise that there would
have been more lenient measures to be taken (e.g., among others, a suspension or a
fine) in order to respect the principle of contractual stability.
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33.
On account of the above, the Chamber decided that the Respondent / CounterClaimant had no just cause to unilaterally terminate the employment relationship
between the Claimant / Counter Respondent I and the Respondent / CounterClaimant and, therefore, concluded that the Respondent / Counter-Claimant had
terminated the employment contract without just cause on 8 February 2017 and
that, consequently, the Respondent / Counter-Claimant is to be held liable for the
early termination of the employment contact without just cause. The Chamber
subsequently also decided that the counterclaim lodged by the Respondent /
Counter-Claimant against the Claimant / Counter Respondent I and the CounterRespondent II should be rejected.
34.
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
focused its attention on the consequences of such termination. Taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant / Counter Respondent I would, in principle, be entitled to receive from the
Respondent / Counter-Claimant an amount of money as compensation for breach of
contract.
35.
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
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.
36.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent contracts contain 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. The members of the
Chamber recalled that according to clause 14 of the contract, “if the [Claimant /
Counter Respondent I] unilaterally rescinds without fair grounds the present sports
employment contract or [the Respondent / Counter-Claimant] promotes his dismissal
invoking fair grounds, the former is required to pay compensation pertaining to the
value of the remunerations which would be due if the contract had ended upon its
termination and also payment, by way of a penalty clause, of the sum of €
30,000,000, exc. VAT, (where due), without prejudice to the application of sports’
sanctions by the relevant national and international entities”.
37.
The members of the Chamber agreed that this clause is to the benefit of the club
only, i.e. it is not reciprocal as it does not grant the same rights to the Claimant /
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Counter Respondent I, and that, therefore, said clause cannot be taken into
consideration in the determination of the amount of compensation.
38.
Therefore, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant / Counter Respondent I
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 nonexhaustive enumeration of criteria to be taken into consideration when calculating
the amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body. In this regard, the Dispute
Resolution Chamber emphasised beforehand that each request for compensation
for contractual breach has to be assessed by the Chamber on a case-by-case basis
taking into account all specific circumstances of the respective matter.
39.
In order to estimate the amount of compensation due to the Claimant / CounterRespondent I in the present case, the members of the Chamber first turned their
attention to the remuneration and other benefits due to the Claimant / CounterRespondent I under the existing contract and/or the new contract, which criterion
was considered by the Chamber to be essential. The members of the Chamber
deemed it important to emphasise that the wording of art. 17 par. 1 of the
Regulations allows the Chamber to take into account both the existing contract and
the new contract, if any, in the calculation of the amount of compensation.
40.
In accordance with the employment contract signed by the Claimant / Counter
Respondent I and the Respondent / Counter-Claimant, said contract was to run for
another 41 months, i.e. as from February 2017 until 30 June 2020, after the
termination of the contract occurred. Furthermore, the Chamber understood that
for this relevant period, the Claimant / Counter Respondent I was entitled to receive
a total salary of EUR 3,321,000. Consequently, the Chamber concluded that the
amount of EUR 3,321,000 serves as the basis for the final determination of the
amount of compensation for breach of contract.
41.
In continuation, the Chamber verified as to whether the Claimant / CounterRespondent I had signed an employment contract with another club during the
relevant period of time, by means of which he would have been enabled to reduce
his loss of income. According to the constant practice of the DRC, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection
with the Claimant / Counter-Respondent I’s general obligation to mitigate his
damages.
42.
The Chamber recalled that, on 8 June 2017, the Claimant / Counter Respondent I
signed an employment contract with the Counter-Respondent II, valid as from 1 July
2017 until 30 June 2019, in accordance with which the Claimant / Counter-
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Respondent I was to receive a monthly salary of EUR 9,000 during the said period of
time. Consequently, the members of the Chamber established that the value of the
new employment contract concluded between the Claimant / Counter Respondent I
and the Counter-Respondent II for the period as from 1 July 2017 until 30 June 2019
amounts to EUR 216,000.
43.
Consequently, and bearing in mind the provision of 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 the new employment contract(s) shall be taken into account
for the calculation of the amount of compensation for breach of contract.
44.
For all the above considerations, the Chamber decided to partially accept the
Claimant / Counter Respondent I’s claim and that the Respondent / CounterClaimant must pay the amount of EUR 3,105,000, which was considered to be a
reasonable and proportionate amount of compensation for breach of contract in
the specific case at hand.
45.
In addition, taking into account the Claimant / Counter Respondent I’s request, the
Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant
/ Counter Respondent I interest of 5% p.a. on the amount of compensation as of the
date on which the claim was lodged, i.e. 26 July 2017, until the date of effective
payment.
46.
Subsequently, the DRC analyses the request of the Claimant / Counter Respondent I
corresponding to “an extra financial compensation” in the amount of EUR 243,000.
In this regard, the Chamber deemed it appropriate to point out that the request for
said compensation presented by the Claimant / Counter Respondent I had no
contractual basis and pointed out that no corroborating evidence had been
submitted that demonstrated or quantified the damage suffered. Consequently, the
DRC decided to reject this part of the player’s claim.
47.
The Dispute Resolution Chamber concluded its deliberations by in the present
matter by establishing that the claim of the Claimant / Counter-Respondent I is thus
partially accepted and any further claims lodged by the Claimant / CounterRespondent I are rejected.
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent I, Player A, is admissible.
2.
The claim of the Claimant / Counter-Respondent I is partially accepted.
3.
The Respondent / Counter-Claimant, Club B, has to pay to the Claimant / CounterRespondent I w ithin 30 day s as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 3,105,000, plus 5%
interest p.a. as of 26 July 2017 until the date of effective payment.
4.
In the event that the amount plus interest due to the Claimant / CounterRespondent in accordance with the aforementioned number 3. above is 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.
5.
Any further claim lodged by the Claimant / Counter-Respondent I is rejected.
6.
The counterclaim of the Respondent / Counter-Claimant is rejected.
7.
The Claimant / Counter-Respondent I is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittance is
to be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
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Note relating to the m otiv ated decis ion (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
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
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