Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2013,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player P, from country I
as Claimant
against the club,
Club F, from country C
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 31 January 2011, Player P, from country I (hereinafter: the Claimant) and
Club F, from country C (hereinafter: the Respondent), entered into an
employment contract valid as of 1 February 2011 until 31 May 2013
(hereinafter: the contract).
2.
On the same date, the parties signed an Image Rights Agreement (hereinafter:
the image rights agreement) valid for the same period as the contract.
3.
According to the contract, the Respondent agreed to pay to the Claimant:
From 1 February 2011 until 31 May 2011 – EUR 50,000 in 4 monthly
instalments of EUR 12,500;
From 1 June 2011 until 31 May 2012 – EUR 125,000 in 10 monthly
instalments of EUR 12,500;
From 1 June 2011 until 31 May 2013 – EUR 125,000 in 10 monthly
instalments of EUR 12,500.
4.
According to the image rights agreement, the Respondent agreed to pay to
the player, inter alia, the following:
From 1 February 2011 until 31 May 2011 – EUR 58,000 in 4 monthly
instalments of EUR 14,500;
From 1 June 2011 until 31 May 2012 – EUR 146,000 in 10 monthly
instalments of EUR 14,600;
From 1 June 2011 until 31 May 2013 – EUR 146,000 in 10 monthly
instalments of EUR 14,600;
EUR 10,000 in case the club qualified to the UEFA Europa League
competition;
several other bonuses.
5.
Clause 17 of the contract states: “if the player shall be guilty of serious
misconduct or the disciplinary Rules of the Club or the terms and conditions of
this Agreement, the Club may, on giving notice to the player by recorded
delivery letter, stating the full reasons for the action taken, terminate this
Agreement. Such action shall be subject to the player’s right of appeal as
follows: 17.1 the Dispute Resolution Chamber established to the country C
Football Association; 17.2 to any tribunal or labour Court in country C; 17.3 to
FIFA and its competent departments; 17.4 to the court of arbitration in
Lausanne”. In this regard, clause 20 of the contract establishes that if the club
fails to fulfil its obligations under the contract, the player may terminate the
agreement and the club “shall have the right of appeal set out in clause 17”.
Player P, from country I / Club F, from country C
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6.
On 18 April 2012, the Claimant filed a claim before FIFA requesting
compensation for breach of contract in the amount of EUR 392,000, as follows:
EUR 250,000 as the remaining value of the contract (20 x EUR 12,500);
EUR 302,000 as the remaining value of the image rights agreement (EUR
292,000 (20 x EUR 14,600) + EUR 10,000 as bonus for the club having
qualified for the UEFA Europa League);
minus EUR 160,000 as the amount the Claimant received under a new
contract;
legal expenses.
7.
The Claimant explained that the Respondent sent him a letter on 10 June 2011,
by means of which the Respondent informed him that “the Club’s coach has
decided not to include you in the roster of the club’s roster for the coming
season with effect from 10.06.2011 […] the Club therefore decided to extend
your leave and/or holiday in order to discuss with you the possibilities of either
mutually terminating the Contract of Employment and/or other agreements
with you or transferring you on loan to another team in country C or abroad”.
8.
In this regard and by letter dated 8 July 2011 addressed to the Respondent, the
Claimant terminated the contract. In his letter of termination, the Claimant
stated that he was forced to terminate the contract and that, taking into
consideration that he is a professional player with a valid contract, the
Respondent “had no right to extend the player’s leave and/or holiday without
training offered to the player”.
9.
By letter dated 11 July 2011, the Respondent answered to the Claimant’s
termination letter and stated, inter alia, that the Respondent “attempted to
deliver to the player a letter extending his leave based on the decision of the
Coach not to include the player in the roster of the Club. However the player
has not accepted delivery of the said letter”. Furthermore, the Respondent
stated that it had provided the Claimant with “the official ground, the gym for
use twice a day as well as the attendance of professional training staff and
doctors to conduct and supervise their training”, however according to the
Respondent, the Claimant did not attend any of the trainings and his agent
informed the Respondent that he did not want to participate in any training.
In addition, the Respondent stated that it held several meetings with the
Claimant’s agent in order to reach an amicable solution and thus, it was
surprised that the Claimant terminated the contract.
10.
In response to the above-mentioned letter, the Claimant wrote to the
Respondent on 25 July 2011 and reiterated that the fact that the Respondent
informed him that his leave was to be extended, gave him no option other
than to terminate the contract. The Claimant further sustains that, unlike what
Player P, from country I / Club F, from country C
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had been stated by the Respondent, he was never allowed to participate in
any kind of trainings and that the Respondent “never negotiated for an
amicable solution as they never offered any kind of compensation against the
remaining two years Contract of the player”.
11.
On 28 May 2012, the Respondent presented its response to the Claimant’s
claim firstly claiming that FIFA has no jurisdiction to decide on the present
dispute. In this respect, the Respondent sustained that “according to the DRC
and/or the case law FIFA has no jurisdiction to try any claim filed by the player
concerning image rights agreements”. Equally, the Respondent invoked art. 17
of the contract alleging that the player had agreed to file any claim in front of
the DRC of the country F Football Association.
12.
In this respect and upon request of FIFA, the Respondent provided FIFA with
the “Regulations for the registration and transfer of football players country C
Football Association (2005)” (hereinafter: the country C Regulations; that came
into force on 15 June 2005). According to the country C Regulations, the
Dispute Resolution Committee (hereinafter: NDRC) is composed of five
members, namely the Chairman, the Vice-Chairman and one member, all
appointed by the Executive Committee of the country C Football Association
and two members appointed by the country C Football Players’ Association
(art. 22.1.1 and art. 22.1.3).
13.
The decisions are taken by simple majority (art. 22.8.1), subsequent to a
summary and written procedure (art. 22.13.1 and art. 22.13.3). Clubs affiliated
to the country C Football Association, football players and other interested
persons are entitled to lodge a claim before the NDRC (art. 22.13.5). Any
decision of the NDRC may be appealed to the Disciplinary Authority of the
country Football Association, which shall reach a final decision (art. 22.10).
14.
As to the substance, the Respondent repeated the content of its letter dated
11 July 2011 addressed to the Claimant. Furthermore, the Respondent alleged
that the termination of the contract by the Claimant was made without just
cause and that, therefore, sanctions should be imposed on the Claimant. In this
respect, the Respondent indicated that the Claimant was guilty of gross
negligence for not appearing on the Respondent’s training sessions.
15.
In his replica, the Claimant asserted that, according to the country C
Regulations, the Respondent could have submitted “a recourse” to the NDRC
within 30 days from the date of termination and that such deadline was not
complied with.
Player P, from country I / Club F, from country C
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16.
The Claimant further stated that, according to article 17.3 of the contract, he
had the right to submit his claim before FIFA and insisted on FIFA’s
competence to deal with the matter at stake.
17.
Finally, the Claimant reiterated all his previous arguments and repeated that
he was forced to terminate the contract. Additionally, the Claimant rejected all
the allegations made by the Respondent.
18.
In its duplica, the Respondent referred to all its previous arguments and
requested the rejection and dismissal of the Claimant’s claim. The Respondent
also indicated that “according to its decisions extended the player’s leave so as
not to attend according to the coach decision the training and directed the
player to train with the rest of the players of the team. However the player
decided in violation of the paragraph 12 of the contract not to follow the
directions of the Club and to unlawfully terminate the contract”.
19.
The Claimant indicated that he signed a new employment contract with the
Club T, from country G valid as of 9 August 2011 until 30 June 2013. Under the
new contract, the Claimant was entitled to EUR 160,000 for the whole
duration of the agreement.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 18 April 2012. Consequently, the previous edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) is
applicable to the matter at hand (cf. art. 21 par. 3 of the Procedural Rules,
edition 2012).
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 2012), the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
Having said that, the DRC stated that it would, in principle, be the competent
body to decide on the present litigation involving a country I player and a
country C club regarding an employment-related dispute.
Player P, from country I / Club F, from country C
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4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present
case, on the basis of article 17 of the employment contract and stating that the
country C Football Association has an independent deciding body to deal with
the matter, i.e. the Dispute Resolution Chamber of the country C Football
Association.
5.
The Chamber equally noted that the Claimant rejected such position and
insisted on the fact that FIFA had jurisdiction to deal with the present matter,
because article 17 of the contract explicitly mentions that he could bring his
case to FIFA.
6.
Taking into account the above, the Chamber emphasised that, in accordance
with art. 22 lit. b) of the 2012 edition of the Regulations, it is competent to
deal with a matter such as the one at hand, unless an independent arbitration
tribunal, guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs, has been established at national level
within the framework of the association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent
arbitration tribunal guaranteeing fair proceedings, the Chamber referred to
the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the
members of the Chamber further referred to the principles contained in the
FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
7.
In relation to the above, the Chamber also deemed it vital to outline that one
of the basic conditions that needs to be met in order to establish that another
organ than the DRC can settle an employment-related dispute between a club
and a player of an international dimension, is that the jurisdiction of the
relevant arbitration tribunal derives from a clear reference in the employment
contract.
8.
Therefore, while analysing whether it was competent to hear the present
matter, the Dispute Resolution Chamber considered that it should, first and
foremost, analyse whether the employment contract at the basis of the
present dispute actually contained a jurisdiction clause.
9.
Having said this, the members of the Chamber turned their attention to article
17 of the contract, which stipulates that, in case of termination of the contract,
the parties have “the right of appeal as follows: 17.1 the Dispute Resolution
Chamber established to the country C Football Association; 17.2 to any tribunal
Player P, from country I / Club F, from country C
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or labour Court in country C; 17.3 to FIFA and its competent departments; 17.4
to the court of arbitration in Lausanne”.
10.
In view of the above, the members of the DRC were of the opinion that the
employment contract did not make reference to one specific national dispute
resolution chamber in the sense of art. 22 lit. b) of the aforementioned
Regulations, but, to the contrary, to several courts and arbitration bodies,
including FIFA. Therefore, the members of the Chamber deemed that said
clause can by no means be considered as an exclusive arbitration clause in
favour of the country C Football Association national deciding body, as
asserted by the Respondent.
11.
Having established that the first criteria for the recognition of the competence
of a national decision-making body is not fulfilled in the present matter and
considering that FIFA was explicitly mentioned in art. 17 of the contract, the
Chamber deemed unnecessary to examine any further points which would
need to be assessed before concluding that a national deciding body is
competent, instead of FIFA.
12.
In view of the above, the Chamber established that the Respondent’s objection
to the competence of FIFA to deal with the present matter had to be rejected
and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations
on the Status and Transfer of Players, to consider the present matter as to the
substance.
13.
Subsequently, the members of the Chamber analysed which edition of the
Regulations should be applicable as to the substance of the matter. In this
respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of
the Regulations (editions 2010 and 2012) and considering that the claim in
front of FIFA was lodged on 18 April 2012, the 2010 edition of said Regulations
is applicable to the present matter as to the substance.
14.
In continuation, with regard to the claimed payments in connection to the
image rights agreement apparently signed by the parties, the Chamber also
had to verify whether, for formal reasons, it was competent to deal with this
specific component or not. In fact it remains that this part of the claim could
possibly not be considered due to the Chamber lacking competence to deal
with disputes related to image rights.
15.
While analysing whether it was competent to hear this part of the claim, the
Chamber, without entering into any discussion regarding the actual wording
of art. 1 of the agreement, which defines the agreement as an image rights
agreement, wished to highlight that said agreement contained elements
Player P, from country I / Club F, from country C
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which led to believe that it was not in fact an image rights agreement but
rather a separate agreement to the employment contract, i.e. directly linked to
the services of the Claimant as a player.
16.
As a general rule, if there are separate agreements, the DRC tends to consider
the agreement on image rights as such and does not have the competence to
deal with it. However, such conclusion might be different if specific elements
of the separate agreement suggest that it was in fact meant to be part of the
actual employment relationship. In the case at hand, such elements appear to
exist. In particular, the agreement contains inter alia stipulations regarding
bonuses directly related to the achievement of sporting objectives, which are
typical for employment contracts and not for image rights agreements.
Consequently, the Chamber decided not to consider the image rights
agreement as such, but determined that said agreement was in fact an
additional agreement to the employment contract instead.
17.
In view of all the above, the Chamber established that the image rights
agreement is to be considered, meaning that it is in a position to take it into
consideration the relevant agreement when assessing the Claimant’s claim.
18.
In continuation, the members of the Chamber acknowledged that, thus, the
parties to the dispute had signed an employment contract as well as an
additional agreement, both dated 31 January 2011, in accordance with which
the Claimant was entitled to receive, inter alia, the total amount of EUR
650,000 as remuneration for the period as from 1 February 2011 until 31 May
2013, as well as the amount of EUR 10,000 in case the club qualified to the
UEFA Europa League competition.
19.
In continuation, the Chamber noted that the Claimant maintains that the
Respondent is to be held liable for the early termination of the employment
contract towards the beginning of July 2011, by explicitly showing no interest
in his services.
20.
In this context, the members of the Chamber took note of the letter provided
by the Claimant, dated 10 June 2011, by means of which the Respondent
informed him about its lack of interest in the Claimant for the following
season.
21.
The Chamber further noted that according to the Respondent, which rejects
the claim put forward by the Claimant, the employment contract was
terminated by the Claimant without just cause by not attending the
Respondent’s training sessions.
Player P, from country I / Club F, from country C
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22.
In this regard, the Chamber highlighted that the underlying issue in this
dispute, considering the claim and the arguments of the parties, was to
determine whether the employment contract had been unilaterally terminated
with or without just cause and, which party was responsible for the early
termination of the contractual relationship in question.
23.
In doing so, the members of the Chamber took into account that, according to
the Claimant, he was forced to terminate the contract in writing on 8 July 2011
in view of the club’s lack of interest in his services and asserting that, during
the period of almost one entire month (i.e. between 10 June 2011 and 8 July
2011), he did not receive any further explanations from the Respondent
regarding his situation, not being allowed either to train with the team.
24.
Additionally, the Chamber took note that the Respondent argues that the
contract was terminated without just cause by the Claimant by not attending
its training sessions. In this respect, the Chamber observed that the Respondent
did not provide any evidence proving the existence of any communication
expressing its interest in the Claimant’s participation in the training sessions of
the team and, what is more, the members of the Chamber pointed out that
the Respondent itself argued that it wished to extend the Claimant’s holiday
leave, according to the decision of the Respondent’s coach of not including the
Claimant in the team for the following season.
25.
In this respect, the DRC concluded that the content of the letter dated 10 June
2011 clearly indicated that the Respondent was no longer interested in the
services of the Claimant. The Claimant was informed that the coach had
decided not to include him in the roster of the club for the “coming season”
with effect from 10 June 2011 and that the Respondent had therefore decided
to extend his leave and/or holiday. In the Chamber’s view, such a
communication clearly proved the Respondent’s lack of interest in the services
of the Claimant.
26.
On account of the above circumstances, the Chamber established that the
Respondent had no longer been interested in the Claimant’s services by
informing him that it had no interest in a further cooperation with him and
that it would try to solve the situation, without however showing any further
concern in doing so. Moreover, the members of the Chamber determined that,
in view of the Respondent’s behaviour during the period of almost one month,
i.e. a period in which the Respondent had not reverted in any way to the
Claimant regarding his status, the Claimant could conclude that the
Respondent was certainly no longer interested in his services. Accordingly, and
taking into account the particularities of the present matter, in particular, the
explicit lack of interest of the Respondent in the Claimant’s services, the
Player P, from country I / Club F, from country C
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Chamber decided that the employment contract was unilaterally terminated
by the Claimant with just cause on 8 July 2011 and that, consequently, the
Respondent is to be held liable for the termination of the employment contact
with just cause by the Claimant.
27.
Having established that the Claimant terminated the employment contract
with just cause, the members of the Chamber focussed their 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 of money as compensation for breach of
contract.
28.
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 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.
29.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contains 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.
30.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the employment contract
and the agreement until 31 May 2013 and concluded that the Claimant would
have received a total remuneration of EUR 542,000 had the contract together
with the agreement been executed until their expiry date.
31.
In continuation, the Chamber 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 DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the
Player P, from country I / Club F, from country C
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amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
32.
Indeed, on 9 August 2011, the Claimant found employment with the Club T,
from country G. In accordance with the pertinent employment contract, which
has been made available by the Claimant, valid until 30 June 2013, the
Claimant was entitled to receive a total remuneration in the amount of EUR
160,000.
33.
In accordance with the constant practice of the Dispute Resolution Chamber
and the general obligation of the player to mitigate his damages, such
remuneration under the new employment contract shall be taken into account
in the calculation of the amount of compensation for breach of contract.
34.
Consequently, on account of all of the above-mentioned considerations and
the specificities of the case at hand, the DRC decided that the Respondent
must pay the Claimant the amount of EUR 190,000, which was to be
considered by the Chamber as a reasonable and justified amount of
compensation for breach of contract in the matter at hand.
35.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to legal costs in accordance with art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence in
this regard.
36.
The Chamber concluded its deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player P, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club F, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 190,000.
4.
If the aforementioned sum is not paid by the Respondent 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 consideration and a formal
decision.
Player P, from country I / Club F, from country C
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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
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
Player P, from country I / Club F, from country C
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