Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed in Zurich, Switzerland, on 3 October 2018,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Play er A, from country A
as Claimant / Counter-Respondent
against the club,
Club B , from country B
as Respondent / Counter-Claimant
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 20 August 2016, the Club B, from country B (hereinafter: Respondent / CounterClaimant) and the Player A, from country A (hereinafter: Claimant / CounterRespondent) signed an employment contract valid as from its date of signature until
30 May 2017 (hereinafter: contract).
2.
According to article 17 of the contract, the Claimant / Counter-Respondent was
entitled to receive a monthly salary of “$” 3,000 payable “at the end of every
Gregorian month”.
3.
Pursuant to article 20 of the contract, the Claimant / Counter-Respondent was also
entitled to receive a signing-on fee of “$”10,000.
4.
Article 4 of the contract establishes that “The Player shall be obliged to participate,
exert his best endeavours and capabilities in all matches and training sessions in
which the Club asks him to participate at the time and place so determined by the
Club unless his state of health would not so permit by virtue of medical reports
issued by an approved entity.”
5.
In addition, article 22 of the contract provides that “The Player undertakes to accept
all the sanctions imposed upon him by the Club and Association in the event of
committing any of the violations provided for under the prevailing Regulations.”
6.
By correspondence dated 31 January 2017, the Respondent / Counter-Claimant
informed the Claimant / Counter-Respondent that it had decided to terminate the
contract considering that the latter allegedly acted in violation of the contractual
stipulations. In addition to the contract termination, the Respondent / CounterClaimant informed the Claimant / Counter-Respondent that it had imposed financial
sanctions on him due to (i) a late arrival at a match on 7 November 2016, (ii) 21 days
of absence from the club’s trainings as from 7 December 2017 and (iii) bad behaviour
during trainings and insults towards a teammate on 20 January 2017. Finally, in such
letter, the Respondent / Counter-Claimant acknowledged that, after deduction of
the financial sanctions, the Claimant / Counter-Respondent was entitled to receive
the amount of 2,809.20.
7.
On 6 January 2018, the Claimant / Counter-Respondent put the Respondent /
Counter-Claimant in default of payment of the amount of USD 24,100 arguing that
the latter terminated the contract without just cause.
8.
On 26 January 2018 with a subsequent amendment on 2 May 2018, the Claimant /
Counter-Respondent lodged a claim against the Respondent / Counter-Claimant
before FIFA for breach of contract without just cause requesting the following:
a) to be awarded USD 12,087 as outstanding remuneration corresponding to (i)
part of his salaries of August, September and October 2016 and (ii) the entire
monthly salaries of November 2016, December 2016 and January 2017;
b) compensation for breach of contract in the amount of USD 12,000;
c) that sporting sanctions be imposed on the Respondent / Counter-Claimant.
Player A, from country A / Club B, from country B
Page 2 of 9
9.
In its reply to the claim, the Respondent / Counter-Claimant acknowledged that the
Claimant / Counter-Respondent’s salary was payable in USD and that it still owed the
Claimant / Counter-Respondent the amount of 2,809 until 31 January 2017.
10.
The Respondent / Counter-Claimant stressed that it had remitted to the Claimant /
Counter-Respondent the signing-on fee of USD 10,000 as well as the amount of
1,500 / USD 2,112 on 11 October 2016, 1,400 / USD 1,971 on 13 November 2016 and
1,300 / USD 1,830 on 12 December 2016.
11.
In addition, the Respondent / Counter-Claimant admitted having deducted the
amount of USD 5,084 from the Claimant / Counter-Respondent’s salaries due to the
reasons set forth in its letter dated 31 January 2017. In this respect, the Respondent /
Counter-Claimant presented undated reports from its team manager and one from
its president dated 2 April 2018, which allegedly confirm that the Claimant /
Counter-Respondent was late at an official match, missed several trainings and
showed bad behaviour towards teammates.
12.
Moreover, the Respondent / Counter-Claimant explained that the Claimant /
Counter-Respondent was not physically fit to practice football since he was gaining
weight and was not making any efforts to “improve his skills set”. In support of such
fact, the Respondent / Counter-Claimant submitted undated reports of its team
manager and the coach.
13.
The Respondent / Counter-Claimant held that for these reasons it had just cause to
terminate the contract.
14.
In his replica, the Claimant / Counter-Respondent amended his claim relating to
outstanding remuneration, which initially referred to the amount of USD 12,100,
explaining that, according to the payment receipts and currency conversions
presented by the Respondent / Counter-Claimant, it is undisputed that the latter still
owes him outstanding salaries in the amount of USD 12,087.
15.
The Claimant / Counter-Respondent held that he had always worked with
consciousness and professionalism during his contract with the Respondent /
Counter-Claimant. He stressed that he should have been summoned by the
Respondent / Counter-Claimant in order to present his defence over its allegations
on his attitude.
16.
Finally, the Claimant / Counter-Respondent insisted on the fact that the Respondent /
Counter-Claimant had no valid reason to terminate the contract.
17.
In its rejoinder, on 27 May 2018, the Respondent / Counter-Claimant lodged a
counterclaim against the Claimant / Counter-Respondent considering that it had
terminated the contract with just cause and requesting compensation in the amount
of USD 15,000.
Player A, from country A / Club B, from country B
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18.
In its counterclaim, the Respondent / Counter-Claimant considered having
terminated the contract with just cause based on the Claimant / CounterRespondent’s alleged lack of cooperation, his alleged aggressiveness towards other
players, his alleged absences from trainings as well as his alleged poor performance
since he did not attend the club trainings.
19.
The Respondent / Counter-Claimant underlined that it had tried to find solutions in
order to improve the Claimant / Counter-Respondent’s performance, but the
Claimant / Counter-Respondent was not interested in remedying the situation.
20.
In this regard, the Respondent / Counter-Claimant stressed that it had given the
Claimant / Counter-Respondent a chance to change his attitude arguing that the
termination of the contract occurred two months after his alleged bad behaviour
had started.
21.
In his reply to the counterclaim, the Claimant / Counter-Respondent insisted on his
previous argumentation stressing that the reasons put forward by the Respondent /
Counter-Claimant in its counterclaim are groundless and did not justify the
termination of the contract.
22.
The Claimant / Counter-Respondent informed FIFA that he had not signed any new
employment contract in the period between 31 January 2017 and 30 May 2017.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 26 January 2018. Consequently, the 2018 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art.
21 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
2018) he is competent to deal with the matter at stake, 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 2018), and considering that the present claim was lodged on 26 January
2018, the 2018 edition of the Regulations on the Status and Transfer of Players
(hereinafter: Regulations) is applicable to the matter at hand as to the substance.
Player A, from country A / Club B, from country B
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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 all the above-mentioned facts as well as
the arguments and the documentation on file. However, the DRC judge emphasised
that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the
matter at hand. In particular, the DRC judge recalled that in accordance with art. 6
par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence
generated or contained in the Transfer Matching System (TMS).
5.
First of all, the DRC judge acknowledged that, on 20 August 2016, the Claimant /
Counter-Respondent and the Respondent / Counter-Claimant concluded an
employment contract valid as from its date of signature until 30 May 2017 and
according to which the Claimant / Counter-Respondent was entitled to receive, inter
alia, a monthly salary of USD 3,000.
6.
The DRC judge further observed that, on 31 January 2017, the Respondent / CounterClaimant terminated the contract in writing on the basis that the Claimant /
Counter-Respondent allegedly acted in violation of contractual stipulations. In such
termination notice, the Respondent / Counter-Claimant also informed the Claimant /
Counter-Respondent of the imposition of financial sanctions on him for several
reasons.
7.
In continuation, the DRC judge noted that with his claim against the Respondent /
Counter-Claimant, the Claimant / Counter-Respondent seeks payment of the amount
of USD 12,087 as outstanding remuneration and of USD 12,000 as compensation for
breach of contract, asserting that the Respondent / Counter-Claimant terminated the
employment contract on 31 January 2017 without just cause.
8.
Furthermore, the DRC judge noted that, for its part, the Respondent / CounterClaimant lodged a counterclaim against the Claimant / Counter-Respondent
maintaining that it had terminated the contract with just cause and requested to be
awarded payment of compensation by the Claimant / Counter-Respondent in the
amount of USD 15,000.
9.
Considering the diverging position of the parties, the DRC judge concluded that the
underlying issue in the matter at hand was to determine as to whether the contract
had been terminated by the Respondent / Counter-Claimant on 31 January 2017
with or without just cause and, subsequently, to determine the consequences
thereof.
10.
In continuation, the DRC judge took note that the Respondent / Counter-Claimant
argued that it had just cause to terminate the contract on 31 January 2017 on the
basis of the Claimant / Counter-Respondent’s alleged lack of cooperation, alleged 21
days of absence from training as from 7 December 2017 as well as his alleged bad
behaviour towards team mates and poor performance.
Player A, from country A / Club B, from country B
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11.
The DRC judge further noted that the Claimant / Counter-Respondent, for his part,
held that he had always worked with consciousness and professionalism and that he
was not given the opportunity to defend himself against the allegations put forward
by the Respondent / Counter-Claimant as the reason for its decision to terminate the
contract and to impose a financial sanction on him.
12.
Taking into consideration the documentation on file as well as 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, the DRC judge deemed that the
documentation submitted by the Respondent / Counter-Claimant in respect of its
allegations relating to 21 days of absence from training and bad behaviour towards
teammates, which consisted of reports from its team manager and its president,
could not be considered as objective and satisfactory evidence of the Claimant /
Counter-Respondent’s alleged absence from training and bad attitude.
13.
In this respect, the DRC judge wished to underline that, according to the Claimant /
Counter-Respondent, he had not been summoned at any time by the Respondent /
Counter-Claimant in order to present his defence regarding such allegations. In this
respect, the DRC judge underscored that the Respondent / Counter-Claimant had not
presented any evidence to the contrary. What is more, the members of the Chamber
took into account that at no time had the Respondent / Counter-Claimant put the
Claimant / Counter-Respondent in default of his contractual obligations prior to
terminating the contract.
14.
In continuation, the DRC judge reverted to the Respondent / Counter-Claimant’s
argument that it terminated the employment contract invoking the Claimant /
Counter-Respondent’s alleged poor performance since he allegedly had not
attended several trainings.
15.
In this context, the DRC judge was keen to emphasize that, in accordance with the
longstanding and well-established jurisprudence of the Dispute Resolution Chamber,
an unsatisfactory performance of a player does not constitute a just cause for a club
to prematurely terminate the employment relationship, as this judgement is
subjective and unmeasurable. Thus, due to the subjective and arbitrary nature of
such ground for dismissal, the DRC judge concluded that this argument of the
Respondent / Counter-Claimant in order to justify the unilateral termination of the
contract could not be sustained.
16.
On account of all the above, the DRC judge decided that the Respondent / CounterClaimant terminated the contract without just cause on 31 January 2017 and that,
consequently, the Respondent / Counter-Claimant is to be held liable for the early
termination of the employment contact without just cause.
17.
Having established the above, the DRC judge went on to deal with the consequences
of the early termination of the employment contract without just cause by the
Respondent / Counter-Claimant.
Player A, from country A / Club B, from country B
Page 6 of 9
18.
First of all, the DRC judge concluded that the Respondent / Counter-Claimant must
fulfil its obligations as per the employment contract until its termination in
accordance with the general legal principle of “pacta sunt servanda”.
19.
Along these lines, the DRC judge established that, according to the employment
contract, the Claimant / Counter-Respondent was entitled to receive the total
amount of USD 28,000 up until 31 January 2017, date of termination of the contract,
including a signing-on fee of USD 10,000.
20.
In continuation, the DRC judge took note of the payment receipts presented by the
Respondent / Counter-Claimant, in accordance with which, as confirmed by the
Claimant / Counter-Respondent, since the beginning of the employment relationship
the Respondent / Counter-Claimant has paid the total amount of USD 15,913.
21.
As regards the Respondent / Counter-Claimant’s argument that the amount of USD
5,084 was to be deducted from the Claimant / Counter-Respondent’s remuneration
in relation with the financial sanction that was apparently imposed on the Claimant /
Counter-Respondent, the DRC judge took into account, in addition to the
considerations under points II./12. and II./13. above, that such fine was apparently
imposed on the latter on 31 January 2017 along with the termination of the
contract. Therefore, the DRC judge decided that the Respondent / CounterClaimant’s argument could not be upheld.
22.
Consequently, the DRC judge decided that the Respondent / Counter-Claimant is
liable to pay to the Claimant / Counter-Respondent outstanding remuneration in the
amount of USD 12,087.
23.
In continuation, taking into consideration art. 17 par. 1 of the Regulations, the DRC
judge decided that the Claimant / Counter-Respondent is entitled to receive from
the Respondent / Counter-Claimant compensation for breach of contract.
24.
In this context, the DRC judge outlined that, in accordance with said provision, the
amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
Claimant / Counter-Respondent 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 DRC judge held that he first of all had to
clarify whether the pertinent employment contract contained any clause, by means
of which the parties had beforehand agreed upon a 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.
Player A, from country A / Club B, from country B
Page 7 of 9
26.
Subsequently, and in order to establish the compensation to be paid by the
Respondent / Counter-Claimant, the DRC judge took into account the remuneration
due to the Claimant / Counter-Respondent in accordance with the employment
contract for the time remaining on the same contract, along with the professional
situation of the Claimant / Counter-Respondent after the early termination occurred.
In this respect, the DRC judge pointed out that the contract would run for another
four months, i.e. until 30 May 2017, in which the total amount of USD 12,000 was to
be paid by the Respondent / Counter-Claimant to the Claimant / CounterRespondent. Consequently, the DRC judge concluded that the remaining value of
the contract as from its early termination by the Respondent / Counter-Claimant
until its regular expiry amounts to USD 12,000 and that such amount shall serve as
the basis for the final determination of the amount of compensation for breach of
contract.
27.
In continuation, the DRC judge remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant / CounterRespondent did not sign a new professional contract during the relevant period of
time, which circumstance appears to be in line with the information available in the
TMS, and was therefore not able to mitigate his damages.
28.
In view of all of the above, the DRC judge decided that the Respondent / CounterClaimant must pay the amount of USD 12,000 to the Claimant / Counter-Respondent
as compensation for breach of contract without just cause.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant / Counter-Respondent, Player A, is accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Club B, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent outstanding remuneration in the amount of USD 12,087, w ithin 30
day s as from the date of notification of this decision.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent compensation for breach of contract in the amount of USD 12,000,
w ithin 30 day s as from the date of notification of this decision.
5.
In the event that aforementioned amounts due to the Claimant / CounterRespondent are not paid by the Respondent / Counter-Claimant within the stated
time limits, interest at the rate of 5% p.a. will fall due as of expiry of the
Player A, from country A / Club B, from country B
Page 8 of 9
aforementioned time limits and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittances
are to be made and to notify the DRC judge of every payment received.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, from country A / Club B, from country B
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