Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 November 2012,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
J, from country R,
as Claimant
against the club,
Club L, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 22 June 2010, the country R player J (hereinafter: the player or the Claimant),
and the country C club, club L (hereinafter: the club or the Respondent), entered
into an employment contract (hereinafter: the contract), valid from the date of
signature until 30 May 2012.
2.
According to the contract, the club agreed to pay the player, inter alia:
For the 2010/2011 season, a total amount of EUR 20,000 paid in ten equal
monthly instalments of EUR 2,000 “on the 31st day of each month”,
starting on 31 August 2010;
For the 2011/2012 season, a total amount of EUR 25,000 paid in ten equal
monthly instalments of EUR 2,500 “on the 31st day of each month”,
starting on 31 August 2011.
Clause 13 of the contract provided that “all player emoluments, salary and
bonuses are tax-free”.
3.
Clause 3 of the contract stipulated that “the [player] hereby acknowledges, agrees
and understands that he will pass all the medical examinations and tests as per the
request of the [club] and in case the report of any of the said examinations and/or
tests provide that the [player] cannot offer his services then the [club] shall have
the right to cancel the [contract] without any consequences and the [player] shall
be obliged to refund immediately to the [club] any amounts already received.”
In addition, said clause 3 also provided that “[H]owever, the above football player
has done surgery intervention into the Anche lion tendon of his left leg and due
to the fact that he has not recuperated yet, the above parties agreed that if the
football player will not be ready until 20/08/2010, after an examination of the
above football club doctor, then the employer has the right to terminate this
agreement and the football player will not be able to claim any damages.”
4.
Finally, clause 6 of the contract stipulated that “at the end of the period i.e.
30/5/2011, the [club] will have the right to end the [contract] with the [player] by
notifying the latter by correspondence, and the [player] will have no right to
damages or claims.”
5.
On the same date, i.e. 22 June 2010, the club and the player also signed a
supplementary agreement (hereinafter: the supplementary agreement) for the
same period as the contract; i.e. valid until 30 May 2012.
6.
Clause 1 of the supplementary agreement provide that “despite the agreement
dated the 22/06/2010, the Club agrees to pay the [player] the amount of Euro
30.000 for the period 2010-2011 as follows:
Euro 2.000 by signed this agreement.
Euro 28.000 payable by 10 equal monthly instalments of Euro 2.800 each
payable on the 31st day of each month, the first one being payable on the
31st of August 2010. (…)”
7.
According to clause 2 of the supplementary agreement, for the season 2011/2012,
the club agreed to pay to the player a total amount of EUR 35,000, to be paid in
ten equal monthly instalments of EUR 3,500.
Player J, from country R / Club L, from country C
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8.
The supplementary agreement further established that “(…) in the event of any
wrongful termination of this [supplementary agreement] at the behest of the
[club], the [supplementary agreement] can be terminated forthwith at the
election of the [player] by written communication to the [club], and the [club]
shall be responsible for payment of all damages suffered by the [player] which in
any event shall be no less than the maximum amount the [player] would have
received from the [club], had this contract been fully executed, including all
bonuses agreed herein.”
9.
By letter dated 19 August 2010, the club terminated the contract unilaterally on
the basis that, in the club’s opinion, the player had not yet recovered from his
Achilles tendon injury and that, after a medical examination by the team’s doctor,
the decision was to terminate the contract according to its clause 3 (cf. point I. 3
above). The club also stated in such letter that it “considered [the player’s]
absence from the preparation of the team to the country A and also [the player’s]
absenteeism from the training of the B team when the A team was to country A
for preparation.”
10.
By letter dated 20 August 2010, the player informed the club that he considered
that the contract had been terminated without just cause and requested that the
club reconsider such termination given that he was ready to continue his
contractual relationship with the club. The player stated that he had passed the
medical examination conducted by the club’s doctor, on 17 August 2010, and was
in perfect condition to participate in football matches. The player further denied
having missed any training sessions with the club. The player further informed the
club that, according to the FIFA Regulations on the Status and Transfer of Players,
employment contracts cannot be subject to any medical examination.
11.
By letter dated 27 August 2010 addressed to the player, the club replied that the
parties had agreed to include a provision in the contract related to the player’s
specific injury, because, at the time of the signature, the player was not yet fully
recovered. The club further stated that on 17 August 2010, the player had been
examined by a surgeon that had concluded that the he had not fully recovered
from the injury and was not ready to resume training. In continuation, the club
alleged that it had already paid the amount of EUR 2,800 which it did not intend
to claim if the player did not claim for damages against the club.
12.
On 18 July 2011, the player filed a claim with FIFA against the club, subsequently
amended on 18 August 2011, alleging that the unilateral termination of the
contract had been conducted without just cause and requesting the payment of
compensation in the aggregate amount of EUR 108,000, as follows:
a) Salary for the season 2010/2011 in the amount of EUR 20,000 pursuant to
the contract;
b) Salary for the season 2011/2012 in the amount of EUR 25,000 pursuant to
the contract;
c) Salary for the season 2010/2011 in the amount of EUR 28,000 pursuant to
the supplementary agreement;
d) Salary for the season 2011/2012 in the amount of EUR 35,000 pursuant to
the supplementary agreement.
Player J, from country R / Club L, from country C
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13.
According to the player, he passed the medical exam performed by the club’s
doctor on 17 August 2010 and, in fact, the result of such exam was that he was
allegedly ready to actively and professionally play football and to participate in
football matches. The player did not submit any document in this regard.
14.
The player asserted that his good condition “[w]as confirmed also in the patient’s
card as of 17th August 2010 in which the doctor of the player Mr. J confirmed that
the player Mr. J started full training for 5 days already and that he was fit”,
enclosing a copy of the patient’s card.
15.
In continuation, the player stated that his healthy physical condition was also
confirmed by a medical examination, on 27 August 2010, in which the doctor
allegedly confirmed that the player had been subject to full strain activities for
two weeks without marked difficulties and that the strain could be increased
without restriction. In this respect, the player submitted a copy of the relevant
medical examination.
16.
The player went on to state that, in his opinion, according to the FIFA Regulations
on the Status and Transfer of Players an unsuccessful medical examination may
not be a reason for the termination of an employment contract and that,
accordingly, the failure by the club to respect the contract represents an
unconditional breach of its obligations.
17.
Moreover, the player disputed the allegation that he did not participate in the
training of the team leading up to the trip to country A, holding that the club
instructed him not to go to country A. The player further claimed that he was
never instructed to train with the “B” team of the club.
18.
On 6 October 2011, the club presented its response to the player’s claim.
According to the club, the unilateral termination was lawful pursuant to clause 3
of the contract. Moreover, the club asserted that when the player signed the
contract, he knew the seriousness of his injury as well as the risk of having a
relapse and not being ready to compete by 20 August 2010. The club maintained
that it accepted to sign the contract, because the player agreed that, in case he
was not ready and did not have the doctor’s approval to begin training with the
team, he would not have any claim towards the club.
19.
The club rejected the player’s allegation that the doctor of the club had confirmed
on 17 August 2010 that he was in good condition to play. To the contrary, the club
declared that the club’s doctor stated that the player did not get over his injury
and was not ready to compete, enclosing a copy of doctor’s statement.
20.
Concerning the validity of the clause 3 of the contract, the club maintained that
article 18 par. 4 of the FIFA Regulations is not applicable to this case, since the
parties had agreed terms in relation to a pre-existing specific medical issue and the
contractual provision “is neither general or vague but specific and explicit”. In
fact, the club alleged that the validity of the contract in this case did not depend
on the fact of the player passing a medical examination (as provided by such
article of the FIFA Regulations on the Status and Transfer of Players), but rather on
Player J, from country R / Club L, from country C
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the circumstance of the player overcoming, by a specific date, his medical issue
and be ready for competition.
21.
In addition, the club asserted that the reason why the parties had agreed that 20
August 2010 was the date by which the player had to be ready to compete was
precisely to give time for the club to find a replacement and for the player to find
another team for that season, if needed.
22.
The club rejected the player’s allegation that it did not allow him to travel with
the team for the basic training. It stated that the reason why the player did not
travel was because the club’s doctor advised him, after examination, that the
injury was not fully overcome and that there was a risk of relapsing. The club
stated that the doctor’s suggestion was for the player to train lightly and this was
the reason why the club had asked the player to train with the “B” team until the
“A” team came back from abroad. The club stated, moreover, that it had been the
player’s decision not to participate in the basic training of the team since the
club’s doctor determined that he was still injured and there was a risk of relapse.
23.
Finally, the club maintained that, according to clause 6 of the contract (cf. point I.
4 above), it was entitled to terminate the latter for the 2011/2012 season and that,
as such, the player has no right to claim any amounts with regards to that season.
24.
The player informed FIFA that he had entered into an employment agreement
with the country R football club Z, valid from 1 September 2010 until 31 August
2011. According to this contract, the player was to receive, inter alia, a monthly
remuneration of 35,000. The contract provided that both parties agreed on the
possibility of early termination of the contract at 30 June 2011 and, consequently,
without the player having the right to collect remuneration for July and August
2011.
25.
Furthermore, the player informed FIFA that on 1 July 2011 he signed an
employment contract with country G club, club X, which specifies that it is a
contract for amateur players, establishing a monthly remuneration of EUR 250 and
compensation for travel expenses at a rate of EUR 0,30/km.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC)
analysed whether it was competent to deal with the case at hand. In this respect,
the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: Procedural Rules). The present matter was submitted to
FIFA on 18 July 2011, thus after 1 July 2008. Consequently, the Chamber concluded
that the 2008 edition of the Procedural Rules is applicable to the matter at hand.
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
Player J, from country R / Club L, from country C
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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 player and a club.
3.
Furthermore, the DRC 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 2 of the Regulations on the Status and Transfer of Players (edition
2010) and also considering that the present claim was lodged in front of FIFA on
18 July 2011, the edition 2010 of the Regulations on the Status and Transfer of
Players (hereinafter: the 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 Dispute Resolution Chamber entered into the substance of the
matter. The members of the Chamber started by acknowledging the facts of the
case, as well as the documentation contained in the file.
5.
In this respect, the DRC examined the documentation presented by the parties
throughout the proceedings and took note that the parties to the dispute had
signed, on 22 June 2010, the contract and the supplementary agreement valid
both from that date until 30 May 2012, according to which the Claimant was
entitled to a total remuneration of EUR 108,000 for the duration of the
employment relationship.
6.
Furthermore, the Chamber acknowledged that Claimant lodged a claim against
the club for breaching the contract, requesting the payment of compensation in
the aggregate amount of EUR 108,000.
7.
The Chamber wished to point out, from the outset, that it had remained
undisputed that, by letter dated 19 August 2010, the Respondent had unilaterally
terminated the contract invoking just cause. The members of the Chamber
considered, therefore, that what needed to be assessed in the current proceedings
is whether the Claimant did have just cause or not to unilaterally terminate the
contract.
8.
The Chamber then entered into the substance of the matter and, in doing so,
started by noting that, the parties appeared to have diametrically opposed
positions regarding the dispute at stake. According to the submissions of the
parties, the DRC noted that in essence, on the one hand, the Respondent
sustained that clause 3 of the contract entitled it to unilaterally terminate the
contract in light of the fact that the Claimant had not overcome his injury,
whereas, on the other hand, the Claimant maintained that said clause was
contrary to the Regulations and that, in any case, he had overcome the injury at
stake before the agreed deadline.
9.
In light of the above, the members of the Chamber wished to emphasize that the
central issue to the present dispute would be to determine the validity and
Player J, from country R / Club L, from country C
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enforcement of clause 3 of the contract, which apparently did seem to entitle the
Respondent to unilaterally terminate the contract in case the Claimant did not
overcome a specific injury by a pre-determined deadline.
10.
In that respect, the Chamber acknowledged the Claimant’s argument that,
according to art. 18 par. 4 of the Regulations, the validity of a contract may not be
made subject to a successful medical examination, which, according to him, is
precisely the object and purpose of clause 3 of the contract.
11.
The Chamber then reverted to the Respondent’s position in this respect and noted
the latter’s allegation that art. 18 par. 4 of the Regulations is not applicable in the
present case, as the parties agreed terms in relation to a pre-existing specific
medical condition was, precisely, assessed by means of a medical examination. The
DRC further acknowledged the Respondent’s claim that the validity of the
contract in this case did not depend on the circumstance of the Claimant passing a
medical examination, but rather on the circumstance of the latter overcoming,
until a pre-determined date, his medical condition, which, according to the
Respondent, implied that said clause is neither general or vague, but specific and
explicit.
12.
In view of the foregoing, the members of the Chamber recalled the wording of
clause 3 of the contract and wished to underline that, from a legal standpoint,
such clause effectively provides for a unilateral termination right in favour of the
Respondent in case the Claimant would not overcome his injury before a specified
deadline.
13.
In continuation, the Chamber reminded that, according to art. 14 of the
Regulations, employment contracts may only be unilaterally terminated where
there is just cause. In light of this, the Chamber concluded that, by enabling the
Respondent to unilaterally terminate the contract in case the Claimant did not
overcome his injury, clause 3 of the contract is, in essence, providing that the
failure to overcome the injury by the Claimant constitutes just cause for the
termination of the contract.
14.
In this context, the Chamber was eager to emphasize that, according to its wellestablished jurisprudence, and as a general rule, an injury of a player does not
constitute a just cause in the sense of art. 14 of the Regulations for a club to
terminate a contract. Therefore, a clause which would consider an injury as just
cause to terminate the contract unilaterally cannot be recognized.
15.
In light of the above, the members of the DRC were of the unanimous opinion
that clause 3 of the contract invoked by the Respondent in order to put an end to
the contract is invalid and cannot be considered. As a consequence, the Chamber
concluded that the Respondent had terminated the contract unilaterally and
without just cause.
Player J, from country R / Club L, from country C
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16.
On account of the foregoing, the members of the Chamber also held that the
Respondent was liable to pay compensation for breach of contract in conformity
with art. 17 par. 1 of the Regulations.
17.
Before proceeding to assess the amount of compensation to be paid, the Chamber
considered important to note that the Respondent had argued that, because
according to clause 6 of the contract (cf. point I. 4), it was entitled to unilaterally
terminate the contract at the end of the 2010/2011 season, the Claimant did not
have any contractual basis to claim any amounts with regards to the following
season.
18.
In this respect, the Chamber wished to point out, first of all, that the
aforementioned clause 6 appeared to give the Respondent the possibility of
terminating the contract at its complete and utter discretion. The members of the
Chamber considered that said clause was, thus, clearly unilateral and potestative
and provided for an unacceptable unbalanced employment relationship and that,
according to its well established jurisprudence, could not be accepted.
19.
Moreover, the Chamber considered important to note that, even if clause 6 of the
contract were to be considered, said clause merely provided for an option for the
Respondent to elect to terminate the contract at the end of the first season. The
DRC noted, therefore, that, at the moment of termination of the contract, its
validity was for two seasons and that, at that time, the exercise of such option was
a mere possibility. The Chamber decided, therefore, to reject the Respondent’s
argument in this respect.
20.
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 recalled 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 Chamber held that it first of all had to
clarify as to whether the 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 contract at the
basis of the matter at stake.
22.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the contract and the
supplementary agreement until 30 May 2012 and concluded that the Claimant
Player J, from country R / Club L, from country C
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would have received EUR 108,000 as salaries had the contract been executed until
its expiry date.
23.
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 able to reduce his loss of income. According
to the constant practice of the DRC, such remuneration under a new employment
contract(s) 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.
26.
The Chamber noted that the Claimant had entered into an employment
agreement with the country R football club Z valid from 1 September 2010 until
31 August 2011, where he was entitled to receive, inter alia, a monthly
remuneration of 35,000. The Chamber also noted that the player signed an
employment contract with the country G club, club X, on 1 July 2011, establishing
a monthly remuneration of EUR 250 and compensation for travel expenses at a
rate of EUR 0,30/km.
24.
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 70,000 to the Claimant as compensation for breach of
contract.
25.
The Dispute Resolution Chamber 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, J, is partially accepted.
2.
The Respondent, Club L, has to pay to the Claimant the amount of EUR 70,000,
within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned amount is 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 and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for its consideration and a formal decision.
4.
Any further request filed by the Claimant is rejected.
Player J, from country R / Club L, from country C
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5.
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
Enclosed: CAS directives
Player J, from country R / Club L, from country C
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