Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 October 2012,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
David Mayebi (Cameroon), member
Damir Vrbanovic (Croatia), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the player,
Player R, from country S
as Claimant
against the club,
Club N, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts
1.
On 1 July 2010, Player R, from country S (hereinafter: the player or the Claimant), and
the Club N, from country C (hereinafter: the club or the Respondent), entered into an
employment contract (hereinafter: the contract) valid as from the date of signature
until 31 May 2013.
2.
On 2 July 2010, the parties also signed an additional agreement (hereinafter: the
private agreement) containing additional financial conditions.
3.
According to the contract, the club agreed to pay the player, inter alia, an aggregate
remuneration of EUR 750,000, payable in 35 monthly instalments of EUR 21,428 for
the duration of the contract, the first payable on 31 July 2010 and the remaining
instalments at the end of each month.
4.
According to the private agreement, the club agreed to pay the player, inter alia,
EUR 700 per month as accommodation expenses.
5.
By letter dated 17 August 2011 addressed to the player, the club terminated the
contract invoking an alleged misbehaviour of the player in relation to an injury.
6.
On 20 April 2012, the player filed a claim with FIFA for unilateral termination of the
contract during the protected period without just cause, requesting the payment of a
total amount of EUR 508,944, as follows:
EUR 32,142 as outstanding salaries for July 2011 and half of August 2011;
EUR 460,702 as residual value of the contract until its agreed expiry; and
EUR 16,100 as accommodation expenses for such period.
7.
The player also requested the application of sporting sanctions against the club.
8.
According to the player, on 8 July 2011, during the team’s preparation that took
place in country P, he complained of knee pain and, as a result of medical exams
carried out, the club suggested that he should undergo surgery. The player
maintained that he never refused to visit a doctor to undergo surgery, if such was
needed. In this respect, the player explained that he wanted a second opinion before
undergoing surgery, and, for that reason he visited a specialist with whom he was
already acquainted and whom he trusted. In this regard, the player asserted that he
was willing to pay for the eventual expenses himself.
9.
Moreover, the player held having informed the club that he wanted to be examined
by his doctor in country S, and that the club allegedly refused his request, affirming
that it had the contractual obligation to provide medical support and thus, should
decide about the operation.
Player R, from country S / Club N, from country C
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10.
The player maintained that the contract does not have any clause stipulating that the
club has a contractual obligation to provide medical assistance to the player and that
it merely provides that “the employer also agrees to provide the employee with the
usual medical expenses (…)”. In this respect, the player considers that the expression
“usual medical expenses” should not include surgery.
11.
In addition, the player considered that the club’s statement that it has the right to
decide on the player’s health is contrary to his right of freedom. The player asserted
that any athlete has to have freedom to choose which doctor should perform any
surgery (if need be) and to undergo further medical examinations if he deems
necessary.
12.
The player further stated that the club never replied to his request to be operated in
country S and kept insisting that he should be operated in country C or in country F.
Furthermore, the player declared that, after the termination of the contract, he
ended up visiting the doctor in country S, who, having assessed the injury,
recommended him not to operate his knee.
13.
The player also asserted that he signed an employment contract with Club X, from
country S, on 31 August 2011 valid from that date until 30 June 2013, and that he was
cleared by a medical examination at the latter club, which, in his opinion, constitutes
evidence that he was fit to play. In fact, the player asserted that he has been regularly
playing in official matches and is in perfect shape.
14.
The player maintained, therefore, that the club had no legal basis to terminate the
contract.
15.
Despite having been invited to do so, the club did not present its position.
16.
Under the employment contract signed with Club X, the player is to receive a monthly
salary of EUR 5,455 until June 2012. The player and the country S club also signed an
annexe to the employment contract, whereby they agreed on the remuneration to be
paid for the 2012/13 season; i.e. a monthly salary of EUR 6,000, plus a signing-on fee
of EUR 38,000, if the country S club kept participating in the country S second
division, or a monthly salary of EUR 6,000 plus a signing-on fee of EUR 168,000, if it
was promoted to the country S first division.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
Player R, from country S / Club N, from country C
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on 20 April 2012, thus after 1 July 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand
(cf. article 21 par. 2 and 3 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 2010) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a country S player and a country C club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering that the present claim was lodged on 20 April 2012, the 2010 edition
of the said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so,
the Chamber started to acknowledge the facts of the case as well as the documents
contained in the file.
5.
In this respect, the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract setting out a period of validity as from 1 July 2010
until 31 May 2013, in accordance with which the Claimant was to receive inter alia
a monthly salary of EUR 21,428 for the duration of the contract. Also, the DRC
acknowledged that the parties signed a private agreement establishing further
remuneration.
6.
In continuation, the Chamber took note that the Claimant alleged that the
Respondent had terminated the contract without just cause and requested the
payment of the aggregate amount of EUR 508,944, considering the contract and the
private agreement.
7.
The Respondent, for its part, failed to present its response to the claim of the
Claimant, in spite of having been invited to do so. For that reason, the DRC did not
have any option other than to consider that the Respondent had renounced its right
to defense.
Player R, from country S / Club N, from country C
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8.
In this context, as a consequence of the aforementioned consideration, the members
of the Chamber stressed that, in accordance with art. 9 par 3 of the Procedural Rules,
any decision would have to be taken upon the basis of the documents already on file,
in other words, upon the statements and documents presented by the Claimant.
9.
In this context, the members of the Chamber noted that it had remained
undisputed that the Respondent had unilaterally terminated the contract on 17
August 2011 invoking just cause, which was demonstrated by the copy of the
letter submitted by the Claimant. The DRC stated, therefore, that the central issue
to the present dispute was to determine if the Respondent did have just cause or
not to terminate the contract. To this end, the Chamber started by paying close
attention to the contents of the letter by means of which the Respondent had
terminated the contract and understood that the dispute between the parties had
been originated by a disagreement on how to address an alleged injury of the
Claimant. The DRC duly noted that, before the contract termination, apparently
both parties had agreed that a surgery could be needed to overcome the injury,
but could not agree on which doctor should perform it.
10.
The members of the Chamber then reverted to the specific arguments brought
forward by the Claimant and acknowledged, first of all, that the Claimant
emphatically claims to have never refused to be treated, but that he simply
wished to be operated by a doctor of his personal trust.
11.
The Chamber also took note of the Claimant’s view that any athlete must have
the right not only of undergoing further medical examinations to confirm what
the appropriate course of action should be, but also the right to freely elect who
should be performing any applicable surgery.
12.
Finally, the members of the Chamber also acknowledged the Claimant’s allegation
that, evidence that requesting other medical opinions is an essential procedure, is
the fact that the doctor which he ended up visiting recommended against
performing any surgery and that, in fact, since then he has been fit for
competition.
13.
The Chamber decided that, based on the documentation on file, it was clear that the
parties had engaged on a discussion regarding the decision of who should perform
the surgery on the Claimant and, therefore, where it would take place.
14.
The Chamber considered that this was an issue which should have been approached
by both parties in a constructive and cooperative manner, so that a mutually
beneficial decision could have been reached in the end.
Player R, from country S / Club N, from country C
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15.
However, the Chamber noted that any possibility of cooperation for such mutually
beneficial decision was permanently prevented when the Respondent decided to
unilaterally terminate the contract.
16.
At this point, the Chamber wished to emphasize, as it has done consistently in the
past, that, according to the principle of contractual stability, the unilateral
termination of a contract must be considered as an absolute last resort, where, given
the particularities of the situation at stake, it could not be expected that one of the
parties could reasonably continue to be bound by the contractual relationship.
17.
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 fulfillment 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.
18.
Having analysed the documentation brought forward by the Claimant and in the
absence of any position submitted by the Respondent, the members of the Chamber
were convinced that the parties’ relationship had not yet come to a disruption point
and that there was, certainly, still margin for adopting other conducts in view of
reaching a mutually satisfactory solution. In other words, the DRC took the view that
the Respondent’s decision to unilaterally terminate the contract was abrupt and
radical and was not justified at that point.
19.
The Chamber decided, therefore, that the Respondent did not have just cause to
unilaterally terminate the contract and that, therefore, the Respondent had breached
the employment contract without just cause and must be held liable for such a
decision.
20.
The Chamber then 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 is entitled to receive from the Respondent an amount as
compensation for breach of contract in addition to any outstanding payments on
the basis of the relevant agreements.
21.
As a consequence, the Chamber decided that the Respondent is liable to cancel all
outstanding amounts under the relevant employment contract and the private
agreement until the date on which the employment contract was terminated, i.e.
until 17 August 2011.
Player R, from country S / Club N, from country C
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22.
The Chamber then reverted to the Claimant’s claim, which includes outstanding
remuneration of EUR 48,242 as salaries for July 2011 and August 2011 (half a
month). In this respect, the members of the DRC emphasised that the monthly
salaries were due at the end of each month and, therefore, noted that, at the
time of termination, i.e. 17 August 2011, the salary corresponding to August 2011
was not yet due and can, thus, only be considered for purposes of the calculation
of compensation. In addition, the DRC also noted that it seems that in relation to
the accommodation expenses claimed by the Claimant as compensation for
breach of contract, the proportional amount for the month of July 2011 must be
considered to have been due at the moment of termination and, therefore, be
considered as part of the remuneration outstanding. The members of the
Chamber recalled that the Respondent failed to demonstrate that it had in fact
paid such remuneration and did not even try to do so.
23.
Consequently, taking into account the documentation remitted by the Claimant
to substantiate his claim and the fact that the employment contract was
considered terminated as of 17 August 2011, the Chamber decided that the
Respondent is liable to pay to the Claimant the amount of EUR 22,128 as
outstanding remuneration, corresponding to the monthly salary and rent for the
month of July 2011.
24.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of the Chamber firstly reminded that, in accordance with art. 17 par.
1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
25.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of
contract. In this regard, the Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at
stake.
26.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the contract until 31 May
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2013. Consequently, the Chamber concluded that the amount of EUR 486,816 (i.e.
salary and accommodation expenses from August 2011 to May 2013) serves as the
basis for the final determination of the amount of compensation for breach of
contract.
27.
In continuation, the Chamber assessed as to whether the Claimant 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 player’s general
obligation to mitigate his damages.
28.
The Chamber noted that the Claimant had signed a new contract with the Club X,
from country S, according to which he was to receive a monthly salary of EUR 5,455
until June 2012. The Chamber noted that the player and the country S club also
signed an annexe to the employment contract, whereby they agreed on the
remuneration to be paid for the 2012/13 season; i.e. a monthly salary of EUR 6,000,
plus a signing-on fee of EUR 38,000 since the country S club kept participating in the
country S second division.
29.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 330,000 to the Claimant as compensation for breach of
contract.
30.
The DRC concluded its deliberations in the present matter by establishing that any
further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player R, is partially accepted.
2.
The Respondent, Club N, has to pay to the Claimant, within 30 days as of the
date of notification of this decision, outstanding remuneration in the amount of
EUR 22,128.
3.
The Respondent also has to pay to the Claimant, within 30 days as of the date
of notification of this decision, compensation for breach of contract in the
amount of EUR 330,000.
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4.
In the event that the aforementioned amounts are not paid within the stated
time limit, interest at the rate of 5% p.a. will apply as of the expiry of the
stipulated time limit until the date of effective payment and the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for its
consideration and a formal decision.
5.
Any further request filed by the Claimant is rejected.
6.
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.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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