Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 2 October 2012,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
H,
as Claimant
against the club,
N,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 4 January 2011, the player, H (hereinafter referred to as player or Claimant), and
the club, N (hereinafter referred to as club or Respondent), signed an employment
contract valid as from its date of signature until 31 May 2012, in accordance with
which the player was to receive, between 31 August 2011 and 31 May 2012, 10
monthly salaries of EUR 1,500 each.
2.
On 5 January 2011, the parties signed a supplementary agreement, in accordance
with which the player was to receive, between 31 August 2011 and 31 May 2012, 10
monthly salaries of EUR 1,800 each.
3.
On 15 September 2011, the player lodged a claim against the club in front of FIFA
maintaining that the club had terminated the employment contract without just
cause, on 30 August 2011, and, therefore, asked to be awarded payment of the
following monies:
a.
b.
c.
d.
e.
EUR 3,300 as salary for August 2011;
EUR 29,700 representing the residual value of the employment contract;
Interest on these amounts;
Reimbursement of legal fees;
Any other remedy deemed fit.
4.
The player explained that, on 11 July 2011, the club authorised him in writing to
negotiate, between 12 July 2011 and 4 August 2011, with the club of his choice and
to no longer train with the team during this period of time.
5.
The player alleged that as from the moment he returned to the club C, since he had
not found any other club, he was not allowed to train with the rest of the team.
6.
On 16 August 2011, the club invited him to attend a meeting of the Disciplinary
Committee scheduled to take place the following day regarding an alleged
disciplinary fault.
7.
According to the player, the club tried to force him to enter into a mutual
agreement to terminate the employment contract.
8.
On 30 August 2011, the club proceeded with the termination of the employment
contract with immediate effect. The player presented a copy of the relevant notice
of termination, in accordance with which the club terminated the contract on the
basis of the aforementioned alleged disciplinary fault and after the disciplinary
hearing.
9.
In reply to the claim, the club refuted the player’s allegations and insisted that the
player was accused of a serious offence, i.e. he allegedly had expressed his intention
to the coach to inflict an injury on the coach’s daughters.
10.
As regards the disciplinary proceedings, the club pointed out that the player had
chosen not to be present at the disciplinary committee meeting.
11.
The club stressed that it does not owe the amount of EUR 3,300 to the player since
the first instalment was scheduled to be paid on 30 August 2011 only.
12.
For these reasons, the club rejects the player’s claim and considers that the
employment contract was terminated at the player’s fault.
13.
In his replica, the player refuted the club’s allegations and presented some press
articles in support of his position that the club was no longer interested in his
services.
14.
In its final comments, the club maintained its position and pointed out inter alia
that the player did not deny that: a) he never complained about any “isolation”; b)
the coach filed a complaint at the police regarding his threats; c) the club followed
its disciplinary procedures; d) he chose not to defend himself in front of the
disciplinary committee.
15.
The player informed FIFA that he had not found any new employment since August
2011 until the date of expiry of the employment contract concluded with the club.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 15 September 2011. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 lit. (b) of the Regulations on the Status and Transfer of Players (edition
2010) he is competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a player
from country A and a club from country B.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players
(edition 2010) and considering that the present claim was lodged on 15 September
2011, the 2010 edition of said Regulations (hereinafter: the Regulations) is
applicable to the present matter as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging the above-mentioned facts as well as the
arguments and the documentation submitted by the parties.
5.
In this respect, the DRC judge recalled that the Claimant and the Respondent signed
an employment contract, on 4 January 2011, valid as from the date of signature
until 31 May 2012, as well as a supplementary agreement, on 5 January 2011.
6.
The DRC judge then reviewed the claim of the Claimant, who maintains that the
Respondent unilaterally terminated the employment contract and the
supplementary agreement without just cause on 30 August 2011 and that,
consequently, he claims inter alia the payment of compensation for breach of
contract in the amount of EUR 29,700 as well as of his salary of EUR 3,300 relating
to the month of August 2011.
7.
The DRC judge noted that the Respondent, for its part, does not deny that it
terminated the employment contract on 30 August 2011, highlighting that the
employment contract was terminated at the Claimant’s fault referring to the
disciplinary proceedings that it had started against the Claimant. Consequently, the
Respondent asks that the Claimant’s claim be rejected.
8.
In order to be able to establish, first and foremost, as to whether, as claimed by the
Claimant, the Respondent had terminated the employment contract without just
cause, the DRC judge proceeded with a more detailed analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the documentation
on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with
which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof.
9.
Firstly, the DRC judge took due note of the contents of the letter dated 11 July 2011
addressed by the Respondent to the Claimant (cf. point I./4. above), in accordance
with which the Respondent confirmed that the Claimant was authorised to enter
into negotiations with another club and to be absent from training between 12 July
2011 and 4 August 2011. The DRC judge deemed that such letter was a strong
indication that the Respondent, regardless of whether or not the Claimant would
have agreed to shorten the contractual relationship between the parties, was not
genuinely interested in maintaining the services of the Claimant for the new season.
10.
In any case, it has remained undisputed between the parties that, after the expiry of
the time limit granted to the Claimant on the basis of the aforementioned letter,
the Claimant returned to the Respondent in August 2011 in order to render his
services to the latter.
11.
The Respondent maintains having terminated the employment contract on 30
August 2011 based on a disciplinary fault allegedly committed by the Claimant and
that, thus, the Claimant is to be held responsible for the early termination of the
employment contract.
12.
In this regard, the Respondent highlighted that the Claimant was accused of a
serious offence, i.e. he allegedly had expressed his intention to the coach to inflict
an injury on the coach’s daughters. In support of such allegation, the Respondent
presented a copy of the minutes of the club’s disciplinary committee meeting dated
17 August 2011, from which it can be noted inter alia that the Claimant was not
present at the hearing. The DRC judge further noted that the Claimant had been
invited to such meeting on 16 August 2011 only. According to the relevant decision,
the employment contract was terminated on the basis of the aforementioned
alleged offence. It was further taken into account that there was no document on
file demonstrating that the decision passed by the club’s disciplinary committee was
notified to the Claimant.
13.
In addition, the DRC judge acknowledged that the Respondent submitted written
statements of the club’s coach, assistant coach and of a player with regard to the
offence allegedly committed by the Claimant. Though the DRC judge deemed that
these documents cannot be considered as objective and convincing evidence
corroborating the Respondent’s allegations, on account of the fact that such
documents were issued by persons closely linked to the Respondent.
14.
In the light of the foregoing considerations, the DRC judge concluded that the
Respondent had not provided any convincing evidence corroborating its allegations
with respect to the Claimant’s conduct.
15.
Regardless of the previous consideration, the DRC judge deemed it of utmost
importance to highlight 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 (e.g., among others, a suspension or a fine), such measures
must be taken before terminating an employment contract. A premature
termination of an employment contract can always only be an ultima ratio.
16.
Overall, on account of all of the above, the DRC judge decided that there was no
just cause for the Respondent to unilaterally terminate the employment relationship
between the Claimant and the Respondent and that, therefore, the Respondent had
terminated the employment contract without just cause.
17.
Having established that the Respondent is to be held liable for the termination of
the employment contract and the supplementary agreement without just cause, the
DRC judge focussed his attention on the consequences of such termination. Taking
into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the
Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract in addition to any outstanding payments on
the basis of the relevant contract.
18.
First of all, the DRC judge reverted to the Claimant’s financial claim, which includes
outstanding remuneration of EUR 3,300 relating to the month of August 2011. The
DRC judge recalled that the Respondent contested that the Claimant would be
entitled to his salary for August 2011, as such salary fell due on 30 August 2011 only.
The DRC judge further took into account that it has remained uncontested that the
Claimant rendered his services to the Respondent during the month of August 2011.
Consequently, the DRC judge concluded that the Respondent must fulfill its
obligations as per employment contract in accordance with the general legal
principle of pacta sunt servanda and decided that the Respondent is liable to pay to
the Claimant the amount of EUR 3,300 relating to the Claimant’s salary for August
2011.
19.
In addition, taking into consideration the Claimant’s claim, the DRC judge decided
to award the Claimant interest on the outstanding amount of EUR 3,300 at the rate
of 5% p.a. as of 15 September 2011.
20.
In continuation, the DRC judge focussed his attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
DRC judge firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and
unless otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including, in particular, the remuneration and other
benefits due to the Claimant under the existing contract and/or the new contract,
the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
21.
In application of the relevant provision, the DRC judge held that he first of all had
to clarify as to whether the pertinent employment contract and the supplementary
agreement 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. In this regard, the DRC judge established that no such
compensation clause was included in the employment contract at the basis of the
matter at stake.
22.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the
monies payable to the player under the terms of the employment contract and the
supplementary agreement as from the date on which the breach occurred, i.e. 30
August 2011, until 31 May 2012, taking into account that the player’s remuneration
for August 2011 is included in the amount of outstanding remuneration (cf. point
II./18. above). Consequently, the Chamber concluded that the amount of EUR 29,700
(i.e. total salary as from September 2011 until May 2012) serves as the basis for the
final determination of the amount of compensation for breach of contract.
23.
In continuation, the DRC judge verified 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 Dispute Resolution Chamber, 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.
24.
In this regard, the DRC judge acknowledged that the Claimant had not entered into
any employment contract since August 2011.
25.
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 29,700 to the Claimant as compensation for breach of
contract.
26.
In addition, taking into consideration the Claimant’s claim and in accordance with
the constant practice of the Dispute Resolution Chamber in this regard, the DRC
judge decided to award the Claimant interest at the rate of 5% p.a. as of 2 October
2012 on the amount of compensation for breach of contract.
27.
Finally, the DRC judge held that the Claimant’s claim for legal costs is rejected in
accordance with art. 18 par. 4 of the Procedural Rules and the respective
longstanding jurisprudence of the Dispute Resolution Chamber.
28.
The DRC judge concluded his deliberations in the present matter by establishing
that any further claims lodged by the Claimant are rejected.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, H, is partially accepted.
2.
The Respondent, N, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, outstanding remuneration amounting to EUR 3,300
plus 5% interest p.a. as from 15 September 2011 until the date of effective
payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount of
EUR 29,700 plus 5% interest p.a. as from 2 October 2012 until the date of effective
payment.
4.
In the event that the amounts due to the Claimant are not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the DRC judge
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 DRC judge:
Jérôme Valcke
Secretary General
Encl: CAS directives