Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 October 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Johan van Gaalen (South Africa), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
A,
as Claimant
against the club,
S,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 3 December 2006, the player A (hereinafter: the Claimant) and the club S
(hereinafter: the Respondent) signed an employment contract (hereinafter: the
contract) valid as from 1 January 2007 until 30 June 2009.
2.
According to the contract, the Claimant was entitled, inter alia, to the amount of
38,000 gross as monthly salary.
3.
By letter dated 28 March 2008, the Respondent informed the Claimant that as a
result of his gross breach of contract, i.e. for having head-butted another player
twice, the contract was terminated with effect as of 26 March 2008.
4.
Initially on 28 August 2008, via the N Football Federation, and on 8 July 2009, the
Claimant lodged a claim in front of FIFA against the Respondent for unlawful
termination of the contract.
5.
The Claimant explained that he fought with one of his team mates during a
training session on 26 March 2008, allegedly because of racist insults. As a result,
both players were expelled from the training and convoked to a meeting
scheduled for the next morning.
6.
During said meeting, the director of the Respondent allegedly informed the
Claimant that his employment contract was terminated because of the incident,
without asking to hear the Claimant’s version of the facts. Furthermore, the
Respondent proposed to sign a mutual termination agreement, which the
Claimant refused to do.
7.
The Claimant consequently claimed that the contract was “unilaterally terminated
by the [Respondent] on the very flimsy and laughable ground that [the Claimant]
had a scuffle with a team mate who was taunting at him racially”, whereas the
racist insults he suffered from were never addressed by the Respondent who saw
in this situation a means to “do away with [the Claimant’s] services”.
8.
In light of the above, the Claimant claimed compensation for breach of contract in
the amount of 532,000 (or its equivalent in US Dollars or Euros), i.e. his monthly
salary of 38,000 as from April 2008 until June 2009, as well as USD 200,000 as
punitive damages.
9.
The Respondent replied by confirming that a scuffle occurred between the team
mates, during which the Claimant head-butted the other player twice. However,
the Respondent stated that after having suspended the training session, it
interviewed the other players and none of them reported having heard racist
insults. In support of this assertion, the Respondent submitted two statements, the
first one signed by the physical coach and apparently four players, the second one
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from the involved team mate; the statements do not refer to any racist insults but
rather to a disagreement related to the training exercises.
10.
The Respondent confirmed having proposed a mutual termination of the
agreement to the player who refused this option against the will of his own
agent. Considering that the Respondent was not feeling comfortable with the
Claimant any more, the termination of the contractual relation was the
Respondent’s only option.
11.
Additionally, the Respondent explained that the Claimant brought a legal action
against the Respondent in country D with the assistance of a local attorney. The
Respondent pointed out that in the claim related to this legal action, it had not
been mentioned that racist insults had been pronounced but that “the player was
provoked by abusive language, insults and physical abuse”.
12.
The Respondent pointed out that the racism aspect only appeared with respect to
the claim lodged in front of FIFA. In this respect, it is to be mentioned that the
local proceedings ceased because the Claimant did not obtain the free legal aid
and could not afford his lawyer’s fees.
13.
Furthermore, the Respondent explained that the employment contract with the
Claimant is subject to the application of collective agreements existing between
the League Association and the Players’ Association, as indicated on the first page
of the contract. Equally, the Respondent highlighted that the contract is partially
governed by country D Employees Act, which applies to part 4 Section 3A of the
contract entitled “Disciplinary matters and breach of contract, etc”. The relevant
contractual provision reads as follows: ”The provisions of country D Employees Act
(…) with regard to disciplinary offences, unfair dismissal and gross breach of
contract shall apply to the present contract.”
14.
In continuation, the Respondent stressed that, according to the relevant case law,
an employer is entitled to terminate without notice the employment of an
employee who has acted in material breach of his contractual obligations, for
instance by showing violent behaviour against his colleagues.
15.
The Respondent also refers to art. 25 par. 6 of the Regulations on the Status and
the Transfer of Players (edition 2008) which stipulates that the Dispute Resolution
Chamber (DRC), when taking its decisions, shall take into account the laws and/or
collective bargaining agreements that exist at a national level.
16.
The Respondent further considered that since the Claimant brought a legal action
against the Respondent in country D, which he finally waived, FIFA is not
competent to deal with the present matter any longer.
17.
The Respondent also pointed out that it sued the Claimant in front of a local court
because he was not leaving the apartment which had been provided by the club.
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As the player finally left said apartment during these local proceedings, the
Respondent considered that the Claimant waived his right to claim against the
Respondent in country D as well as before the DRC.
18.
Additionally, the Respondent mentioned that the unilateral termination of the
Claimant’s contract is justified under both country D law and FIFA Regulations.
Consequently, the Respondent asserted that the DRC must reject the Claimant’s
claim for breach of contract as well as his claim for punitive damages as there is no
legal basis in the FIFA Regulations or in country D Law for the application of
punitive damages.
19.
In his replica, the Claimant rejected the Respondent’s description of the incident
and presented a detailed statement on oath, done before a public notary, in
which the Claimant maintains that the other player used “racial uncomplimentary
remarks” about him, adding that this player had already been insulting him in a
racist way for weeks and that he “mistakenly head-butted” the other player. The
Claimant also explained that the real reason for having terminated his contract
was that the Respondent was unhappy to see the most paid player of the team
unable to play for seven months because of a broken ankle. The Claimant believed
that when the Respondent saw an opportunity to have him out, the latter used it
without giving the Claimant the opportunity to explain himself, which is why the
Claimant tried to go to court to obtain compensation and money from the
insurance in relation with his broken ankle. In this respect, the Claimant also held
that he did not waive the respective claim, but that he could simply not afford the
legal fees. He therefore argued that the DRC was competent to hear and decide
on the case.
20.
The Claimant furthermore explained that the statements from the physical trainer
and players should be disregarded as they were made under the guidance of the
Respondent. The Claimant continued by saying that, however, it could be seen
from the various testimonies on file that the scuffle resulted from the other
player’s behaviour.
21.
Furthermore, the Claimant pointed out that he was not able to mitigate his
damages because he was injured and unable to play for any other club. He did not
register with any other club as from when he ceased playing for the Respondent.
22.
The Claimant continued by explaining that his injury healed in a wrong way
because of the lack of treatment, which made him unable to play football at a top
level.
23.
In his duplica, the Respondent pointed out that the description of the scuffle
provided by the player was contradictory, which should lead the DRC members to
be prudent in their appreciation. Likewise, the Respondent referred to a website
on which it could be read that the Claimant got dismissed from the Respondent
because of having head-butted another player twice.
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24.
The Respondent additionally explained that the Claimant did not comment on the
fact that he refused the offer of a mutual termination agreement against his
agent’s will, which allegedly showed that the agent believed that the Respondent
could dismiss the Claimant due to his violent behaviour and that the agreement
proposed by the Respondent was a genuine attempt to find an amicable solution.
25.
The Respondent concluded by stating that since the termination of the contract
was lawful, the Claimant’s claim had to be rejected.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or the DRC) analysed which Procedural Rules were applicable to the case
at hand. In this respect, it took note that the present matter was submitted to FIFA
on 28 August 2008. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber, edition 2008
(hereinafter: the Procedural Rules), are applicable to the matter at hand (cf. article
21 par. 2 and 3 of the Procedural Rules).
2.
Furthermore, the Chamber analysed which regulations were applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2010, 2009 and 2008), and considering that the present claim was lodged on 28
August 2008, the 2008 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
3.
Having established the applicable regulations, the Chamber went on to examine
whether it was competent to deal with the matter at hand.
4.
In this respect, the Chamber took note that the Claimant had brought a legal
action against the Respondent in front of a local court in the country D which was,
however, subsequently not heard on its merits since, according to the Claimant,
the latter could not afford the legal fees. After extensive deliberations, the
members of the Chamber were of the unanimous opinion that, since the
aforementioned claim was no longer pending in front of said local court and was
not dealt with as to the substance, there was no lawsuit or decision which could,
as a litis pendens or a res iudicata, prevent the DRC from being competent to deal
with the present dispute. Likewise, the Chamber was of the opinion that the
aforementioned circumstances could not hinder the Claimant from lodging a claim
against the Respondent in front of FIFA.
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5.
Equally, the Chamber noted that the Respondent had apparently sued the
Claimant in front of a local court in country D for not leaving the apartment which
had been provided by the Respondent. However, the Chamber was of the opinion
that one had to differentiate between a lawsuit related to the eviction from an
apartment and a dispute concerning a claim for compensation for an alleged
breach of contract. Therefore, also in this respect, the Chamber decided that there
was no litis pendens or res iudicata which would hinder the Chamber’s
competence to deal with the present matter. Likewise, the Chamber was of the
opinion that the outcome of such apparent eviction proceedings could have had
no effect on the Claimant’s right to lodge a claim against the Respondent in front
of FIFA.
6.
Bearing in mind the foregoing, 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, the Dispute Resolution
Chamber is competent to adjudicate on an employment related dispute between a
player and a club.
7.
Its competence having been established, the Chamber entered into the substance
of the matter. In this regard, the members of the Chamber started by
acknowledging the above-mentioned facts as well as the documentation
contained in the file.
8.
The Chamber first of all noted that it was undisputed that the Claimant and the
Respondent had signed, on 3 December 2006, an employment contract valid as
from 1 January 2007 until 30 June 2009, according to which the Claimant was
entitled to the amount of 38,000 gross as monthly salary.
9.
Equally, the Chamber deemed it to be undisputed that on 28 March 2008, the
Respondent unilaterally terminated the employment contract with the Claimant,
based on an alleged misconduct of the latter.
10.
The members of the DRC noted that, based on the foregoing, the Claimant lodged
a claim against the Respondent requesting compensation for an alleged breach of
contract without just cause. The Respondent, for its part, considered that it had
just cause to terminate the contract.
11.
Therefore, the Chamber considered it to be the underlying issue of the case at
hand to establish whether the Respondent had, in accordance with art. 14 of the
Regulations, just cause to prematurely terminate the employment contract. The
Chamber also underlined that subsequently, if it was found that the employment
contract was terminated without just cause, it would be necessary to determine
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the financial and/or sporting consequences for the party that breached the
relevant employment contract.
12.
Consequently, the Chamber went on to carefully examine the circumstances
surrounding the premature termination of the employment contract between the
Claimant and the Respondent.
13.
The Chamber noted that the Claimant explained that he had fought with one of
his team mates during a training session, allegedly provoked by racist insults,
culminating in him head-butting the other player, and that he was therefore
expelled from said training. The Chamber noted that, in this respect, the Claimant
presented a detailed statement on oath, apparently done by the Claimant before
a public notary. The members of the Chamber also took note that the Claimant
was of the opinion that the cancellation of his contract was groundless and that
the Respondent had misused the aforementioned situation to get rid of him,
allegedly because he was injured and the player with the highest salary on the
team.
14.
Likewise, the Chamber took due note of the Respondent’s argumentation,
according to which a scuffle had occurred between the Claimant and a team mate,
during which the Claimant had head-butted another player twice. In this respect,
the Chamber acknowledged that, according to the statements of a physical coach
and several players, there had been a disagreement related to the training
exercises, but no racist insults had been pronounced. Equally, the DRC took note
that the Respondent highlighted that such allegations had not been made in the
Claimant’s lawsuit in front of local courts. Furthermore, the Chamber noted that
the Respondent had not commented on the Claimant’s presumption that the
Respondent misused the situation to get rid of him, because he was injured and
the best paid player on the team.
15.
Subsequently, the Chamber acknowledged the Claimant’s position in response to
the comments of the Respondent, according to which, inter alia, the statements of
the physical coach and of players should not be taken into account since they had
allegedly been made under the influence of the Respondent. The members of the
Chamber also took into account that the Claimant had, in fact, admitted that he
had head-butted another player and had primarily focussed on the reason behind
his undisputed aggression against a team mate.
16.
To finish, the members of the Chamber took due note of the Respondent’s final
position, according to which the description of the training incident, as provided
by the player, was contradictory, which is why the DRC should be prudent in its
appreciation. Equally, the Chamber acknowledged that the Respondent made
reference to a website, allegedly confirming its description of the course of events.
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17.
Bearing in mind all the aforementioned, the members of the Chamber extensively
deliberated whether the Respondent had, in accordance with art. 14 of the
Regulations, just cause to prematurely terminate the employment contract in
question.
18.
The Chamber highlighted that there were conflicting statements concerning the
events giving rise to the unilateral termination of the employment contract. While
the Claimant asserted that he had been provoked in a racist way and that there
was a scuffle with another team mate during which the Claimant head-butted the
other player (this position being included in an apparent statement on oath), the
Respondent presented witness statements indicating that there had been no racist
insults and that the Claimant had head-butted a team mate and that such
behaviour had left it with no other alternative but to terminate the employment
contract.
19.
On account of these statements, the Chamber concluded that, whereas the parties
appear to disagree on the circumstances prior to the Claimant’s head-butting the
other player, it is undisputed that the Claimant had, in fact, head-butted a team
mate during training.
20.
In continuation, the Chamber was eager to emphasise 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 in order for an
employer to assure the employee’s fulfilment of his contractual duties, such
measures must be taken before terminating an employment contract. A
premature termination of an employment contract can always only be an ultima
ratio.
21.
In view of the above, the Chamber was of the opinion that the Respondent,
despite the undisputed aggression of the player against a team mate, did not have
just cause to prematurely terminate the employment contract with the Claimant,
since there would have been more lenient measures to be taken (e.g., among
others, a suspension or a fine), in order to sanction the misconduct, which is at the
basis of the termination of the employment contract by the Respondent.
22.
In this context, the Chamber also highlighted that the Claimant appears to have
rendered his services to the Respondent without any disciplinary measures against
him during 15 months.
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23.
Overall, the Chamber decided that there was no just cause to unilaterally
terminate the employment relationship between the Claimant and the
Respondent and that, therefore, the Respondent had breached the employment
contract without just cause.
24.
As regards the legal framework of the present dispute, and for the sake of
completeness, the Chamber also took due note that the Respondent argued that
the employment contract between the parties was subject to collective
agreements as well as to country D Employees Act. The Chamber acknowledged
that the Respondent argued that, based on national case law, and in accordance
with the aforementioned sets of rules, an employer is entitled to terminate the
employment of an employee without notice in case the latter acts in material
breach of his contractual obligations, for instance by showing violent behaviour
against his colleagues. Likewise, the Chamber noted that the Respondent referred
to art. 25 par. 6 of the Regulations to corroborate the fact that the
aforementioned line of argumentation should be taken into account in the
assessment of the present case.
25.
With the foregoing in mind, the Chamber believed to understand that, also
according to the aforementioned sets of rules, an employment contract can only
be prematurely terminated without prior warning as an ultima ratio in case of a
severe breach of contractual obligations. Consequently, even if such rules were
applicable to the case at hand, the Chamber ascertained that the above
considerations, which established that a one-sided and premature termination of
an employment contract would be justified only if exercised as a measure of last
resort, are fully in line therewith.
26.
Having established that the Respondent had breached the employment contract
without just cause, the Chamber went on to examine the financial consequences
arising from such breach. In this respect, the Chamber recalled that the Claimant
requested compensation for breach of contract in the amount of 532,000 as well
as USD 200,000 as punitive damages, whereas the Respondent rejected such claim,
arguing, inter alia, that the FIFA Regulations could not serve as a basis for a claim
for punitive damages.
27.
The members of the Chamber considered that a careful reading of art. 17 of the
Regulations, being the provision which stipulates the consequences of a breach of
contract without just cause, provided the key to assess the amount of
compensation due by the club to the player.
28.
The Chamber clarified that the criteria listed therein were, however, not
exhaustive and that each request for compensation for breach of contract had to
be assessed on a case-by-case basis.
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29.
In this context, the Chamber focussed its analysis on the amount of compensation
for the unjustified breach of contract due by the club to the player and examined
the objective criteria listed in art. 17 par. 1 of the Regulations. According to this
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.
30.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. The Chamber established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
31.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that the said provision provided for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be taken
into account at the discretion of the deciding body.
32.
On this basis, the members of the Chamber highlighted that the early termination
of the employment contract occurred based on misconduct by the Claimant, which
was, in principle, uncontested (even if the detailed circumstances of said incidents
were disputed by the parties). The Chamber deemed that it should consider this
fact in determining the amount of compensation to be paid by the Respondent,
i.e. that it should take into account that the Claimant had, at least to some extent,
caused the present dispute. In other words, the Chamber took into consideration
the conduct of the Claimant as a mitigating circumstance when calculating the
compensation to be paid by the Respondent.
33.
Equally, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account, inter alia, in line with art. 17 par.
1 of the Regulations, the remuneration due to the Claimant in accordance with
the contract, the time remaining on the same contract as well as the professional
situation of the Claimant after the early termination occurred.
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34.
Bearing in mind the foregoing, the Chamber proceeded to the calculation of the
monies payable under the terms of the contract. In this respect, the Chamber
acknowledged that the Claimant was, according to the employment contract,
entitled to receive a monthly salary in the amount of 38,000 gross, and that said
contract would have remained valid until 30 June 2009. Likewise, the Chamber
took into account that the player did not find employment after his contract with
the Respondent had been unilaterally terminated.
35.
Taking into account all the above, the Chamber concluded that the amount of
compensation for breach of contract without just cause to be paid by the
Respondent to the Claimant was composed of a lump sum of 250,000, which was
to be considered reasonable and justified as compensation for breach of contract.
36.
On account of the foregoing, in its conclusion, the Chamber decided to partially
accept the Claimant’s claim and to grant compensation for breach of contract in
the amount of 250,000. The Chamber concluded its deliberations by deciding that
any further claims of the Claimant are rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, S, has to pay to the Claimant the amount of 250,000 as
compensation for breach of contract within 30 days as from the date of
notification of this decision.
3.
In the event that the aforementioned amount is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for its consideration and a formal
decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent 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 motivated decision (legal remedy):
According to art. 63 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 within 21 days of receipt of notification of this decision and shall contain all
the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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