Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), Member
Rinaldo Martorelli (Brazil), Member
Sofoklis Pilavios (Greece), Member
Essa M. Saleh Al-Housani (United Arab Emirates), Member
on the claim presented by
the player, V,
as Claimant
against
the club, Z,
as Respondent
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 6 February 2008, the B player V (hereinafter: the player) concluded an
employment contract with the S club Z (hereinafter: Z) for the period as of 6
February 2008 until 30 June 2010. Among other financial benefits, a monthly
salary of EUR 5,000 as well as two sign-on boni of EUR 10,000 each (payable on 30
June 2008 and 31 December 2009) were agreed upon between the parties.
2.
On 28 July 2008, the player lodged a complaint against Z before FIFA claiming that
the mentioned club breached the employment contract concluded between the
parties. The player stated that, on 16 May 2008, the club unilaterally and without
just cause terminated his employment contract declaring that his performance had
been poor. Furthermore, the player explained that he was banned from training,
obliged to hand over his equipment to the club and instructed to move out of his
apartment. He also maintained not having received his salaries for the months of
June and July 2008. As a consequence, by means of his claim the player requested
that Z be obliged to allow him to rejoin the club or, should this be refused, to pay
him EUR 50,000 as compensation.
3.
On 3 October 2008, the player modified his claim and asked that Z be ordered to
pay him EUR 85,000. In particular, the player requested the salaries of May, June,
July, August and September 2008, the sign-on bonus of EUR 10,000 contractually
set to fall due on 30 June 2008 as well as EUR 50,000 as compensation.
4.
In spite of having been solicited to do so on several occasions, Z never responded
to the claim lodged against it by the player, although it was informed that, in
absence of a reply, the Dispute Resolution Chamber would render a decision on
the basis of the information and evidence at its disposal.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber 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 on 28 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. art. 21 paras. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 para. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 para. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
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Players (edition 2008), 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 B player and a S 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 paras. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008), and considering that the present claim was lodged on 28 July 2008
and the relevant employment contract was signed on 6 February 2008, the current
version of the regulations (edition 2008; 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 members of the Chamber started by acknowledging that, according to the
player, the employment contract he had concluded with Z on 6 February 2008 was
unilaterally terminated by the club on 16 May 2008 without just cause. The club
appeared to have motivated the termination of the relevant employment contract
with the player’s allegedly poor performance and had subsequently banned the
player from training and ordered him to return his equipment to the club and
move out of his apartment.
5.
With respect to all of the player’s allegations, the Dispute Resolution Chamber first
of all lent emphasis to the fact that Z had omitted to provide FIFA with any
statements whatsoever in response to the player’s complaint and to his initial
request to rejoin the club, although it had repeatedly been invited to proceed
accordingly. In this regard, the Chamber established that, in doing so, Z had
renounced its right to defense and had, in particular, not denied that it had
unilaterally terminated the employment relationship between the parties to the
present dispute due to the player’s alleged poor performance. The members of the
Dispute Resolution Chamber therefore had no alternative but to conclude that Z
accepts the player’s allegations in this respect.
6.
Consequently, in a next step, the members of the Chamber proceeded to evaluate
whether Z had a just cause to terminate the employment contract in question. In
this regard, the Dispute Resolution Chamber recalled that, according to the player,
Z had terminated his labour agreement exclusively invoking his allegedly poor
performance.
7.
In this context, the Dispute Resolution Chamber referred to its established
jurisprudence, according to which a player’s poor performance does in principle
not constitute a valid reason to unilaterally terminate an employment contract. In
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this respect, the Chamber in particular underlined the general lack of objective
criteria while assessing a player’s performance and held that, also in the present
case, such reasoning could not serve as a just cause for the termination of an
employment contract.
8.
As a consequence, and since Z had not put forth any other arguments possibly
justifying the termination of the relevant labour agreement, the Dispute
Resolution Chamber established that Z had terminated its employment contract
with the player without just cause and was, on the basis of art. 17 para. 1 of the
Regulations, liable to pay compensation for breach of contract to the player. In
this respect, the Chamber noted that the player had requested to receive the total
amount of EUR 85,000.
9.
In continuation, before turning their attention to the determination of the
applicable amount of compensation in the present case, the members of the
Chamber recalled that the player had in fact been employed with Z until 16 May
2008, but had undisputedly not received any salary for the said month. Thus, the
Dispute Resolution Chamber decided that, firstly, the player was to receive his
salary for half the month of May on a pro rata basis, amounting to EUR 2,500.
10.
Subsequently, the Dispute Resolution Chamber went on to establish the amount
of compensation for contractual breach due to the player. In this regard, the
members of the Chamber took into account the original duration of the
agreement, the player’s contractual entitlements as well as his financial claim, and
decided that EUR 82,500 is a reasonable and justified amount to be paid by Z to
the player as compensation for breach of contract in the matter at hand.
11.
As a consequence, the Dispute Resolution Chamber concluded its deliberations on
the present dispute by deciding that Z has to pay the total amount of EUR 85,000
to the player.
12.
Finally, and for the sake of good order, the Chamber emphasized that the
contractual relationship between he parties to the present dispute has come to an
end.
III.
Decision of the Dispute Resolution Chamber
1.
2.
The claim of the Claimant, the player V, is accepted.
The Respondent, the club Z, shall pay the amount of EUR 85,000 to the Claimant,
V, within 30 days as from the date of notification of the present decision.
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3.
In the event that the above-mentioned amount is not paid within the indicated
deadline, the present matter will be submitted upon request to the FIFA
Disciplinary Committee for its consideration and decision.
4.
The Claimant is instructed to inform the Respondent directly and immediately 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 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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