Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 November 2013,
in the following composition:
Geoff Thompson (England), Chairman
Taku Nomiya (Japan), member
Mohamed S. Al-Saikhan (Saudi Arabia), member
Alejandro Marón (Argentina), member
Theodore Giannikos (Greece), member
Rinaldo Martorelli (Brazil), member
Johan van Gaalen (South Africa), member
Carlos González Puche (Colombia), member
John Bramhall (England), member
on the claim presented by the player,
Player K, from country E
as Claimant
against the club,
Club R, from country A
as Respondent
regarding an employment-related contractual dispute
arisen between the Claimant and the Respondent
I.
Facts of the case
1.
On 27 June 2011, Player K, from country E (hereinafter the Claimant), and the Club R,
from country A (hereinafter the Respondent), concluded a “Professional Football
League Work Contract” (hereinafter the contract), valid until 30 June 2013.
2.
According to article 5 of the contract, “Football player’s salary”, paragraph 1 and 2, the
Claimant was entitled to the following remuneration:
- USD 5,000 as monthly salary for the season 2011/2012;
- USD 6,000 as monthly salary for the season 2012/2013;
- USD 7,000 as initial payment for the season 2011/2012;
- USD 5,000 as initial payment for the season 2012/2013;
3.
In particular, the article 4 of the contract, “Termination of the contract”, established
the following:
“ 4.1 This contract may be terminated in the following cases stated below:
a) If [Respondent] does not pay the salary intended in Article 5.1 of the contract
during 3 months.
b) If the [Respondent] does not make payments intended in Article 5.2. [initial
payment] of the contract.
c) If there are other justifiable reasons intended in the Article on the status and
transfer of the football players of FIFA and Regulations on status and transfer
of the football players of Association of Football Federations of country A.
4.2 This contract may be terminated by the request of the club in the following
cases stated below:
a) If [Claimant] does not observe the disciplinary rules;
b) If there are cases intended in the Article on the status and transfer of the
football players of FIFA and Regulation on status and transfer of the football
players of Association of Football Federations of country A.
c) In the case of negative situations the [Respondent] has authority to break the
contract unilaterally and to stop the payment [Claimant].”
4.
On 14 October 2011, the Claimant lodged a claim against the Respondent, claiming the
aggregate amount of USD 136,500, detailed as follows:
- Outstanding remuneration:
USD 1,000, as the residual part of the initial payment due for the season
2011/2012;
USD 10,000, corresponding to the monthly salaries for the months of August
and September 2011;
- Compensation:
USD 45,000, corresponding to the salaries from October 2011 until June 2012;
USD 1,500, corresponding to the bonus for the season 2011/2012;
USD 5,000, corresponding to the initial payment for the season 2012/2013;
USD 72,000, corresponding to the salaries for the season 2012/2013;
USD 2,000, corresponding to the bonus for the season 2012/2013.
Additionally, the Claimant requested interests and procedural costs.
In this respect, the Claimant submitted a copy of the contract signed by both parties in
which, under its article 5, there is a handwritten note stating “Bonuses 1500$ - 2000$”.
5.
Player A, from country E / Club R, from country A
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6.
The Claimant declared that up to date, the Respondent paid him only the amount of
USD 6,000, corresponding to part of his initial payment due for the season 2011/2012.
Further, the Claimant affirmed that, on 28 September 2011, the Respondent’s vice
president verbally informed him that he was released from the club and that he should
no further attend the trainings.
7.
In view of the above, the Claimant asserted having sent an e-mail to the Respondent, by
means of which he requested to be formally informed, i.e. in written, about the
decision to release him and clarify whether he should attend trainings as well as
requested the payment of the outstanding remuneration.
8.
According to the Claimant, the Respondent only replied to him on 6 October 2011,
sending him a correspondence through which the Respondent informed him that it
signed a contract with him without any trial but that his performance was not enough
to play in a professional club and that due to this fact, “the club management decided
to break the contract with [the Claimant] unilaterally and stop the payment according
to the article 4.2 (c) of the contract. The Claimant provided a copy of the aforesaid
correspondence.
9.
In this respect, the Claimant denied the allegations made by the Respondent, stating
that in his opinion the article mentioned by the latter is null and void and is not
applicable. The Claimant pointed out that nowhere in the contract it is defined what
are the “negative situations” and that according to the Regulations on Status and
Transfer of Players, a contract may only be terminated upon its expiry or where there is
a just cause. In this respect, the Claimant alleged that the Regulations on Status and
Transfer of Players do not allow to unilaterally terminate a contract only because the
club is not satisfied with the player’s performance, thus the arguments presented by the
Respondent do not constitute a just cause. Additionally, the Claimant held that in any
case the allegations made by the Respondent, concerning his performance, are not true
as well as that it is not true that the Respondent had paid all debts until the breach of
the contract.
10.
The Respondent submitted its position, rejecting the Claimant’s claim. In this respect,
the Respondent declared that, since the beginning, the Claimant showed to be
unprofessional and that due to mistakes made by him the Respondent had to face hard
situations as well as was deprived of important victories. The Respondent further
alleged that the Claimant was repeatedly warned by the head coach of the team
regarding this situation as well as regarding his “physical unfitness”, without any
improvement by the Claimant. As a result, the Respondent affirmed that the head
coach as well as the goalkeeper’s coach sent an official report to the club’s
management, which led the Respondent to decide to terminate the contract with the
Claimant and stop the payment of his salaries, in accordance with art. 4.2 c) of the
contract. Finally, the Respondent alleged having paid all salaries and bonuses until the
termination of the contract.
Player A, from country E / Club R, from country A
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11.
In replica to the Respondent’s position, the Claimant maintained all his previous
allegations. The Claimant emphasized that the Respondent failed to demonstrate that
in fact it did comply with the payments established in the contract. Furthermore, the
Claimant held that he was never notified about his “physical unfitness” as well as had
no previous knowledge of the report allegedly sent by the head coach and the
goalkeeper’s coach to the club’s management. Anyway, the Claimant pointed out that
the Respondent failed to submit evidence that said report was sent or delivered before
the filing of his claim. In regards to the Respondent’s allegations of his low
performance, the Claimant asserted that said allegations are not true considering that
while the contract was in force he was summoned by the country E national team as
well as he “was declared fit in the physical tests made by the [Respondent] just a few
days before signing the contract”. Finally, the Claimant requested to apply sporting
sanctions.
12.
The Respondent provided its final comments insisting in the arguments already
submitted and submitted the following documents:
- The contract signed with the Claimant, which was already enclosed by the Claimant
in his claim, but said copy did not include the handwritten clause regarding the
bonuses;
- The official report from the head coach and goalkeeper’s coach dated 11
September 2011;
- A notification from the Respondent’s executive director addressed to its vicepresident, dated 13 September 2011, concerning the Claimant’s bad behaviour.
13.
Regarding his contractual situation, the Claimant informed the following:
- From 28 October 2011 until 19 January 2012, he remained unemployed;
- On 20 January 2012, he concluded a contract with Club F, from country B, valid until
31 October 2012, being entitled to a monthly salary of EUR 1,300.
- From 1 November 2012 until 21 February 2013, he remained unemployed;
- On 22 February 2013, he concluded a contract with Club D, from country C, valid
until 21 February 2014, being entitled to a monthly salary of currency of country C
28,000,000.
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, it took
note that the present matter was submitted to FIFA on 14 October 2011. Consequently,
the Rules Governing the Procedures of the Claimants’ Status Committee and the Dispute
Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the
matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules).
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 is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an country E
player and an country A club.
Player A, from country E / Club R, from country A
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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 par.
1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012 and
2010), and considering that the present claim was lodged on 14 October 2011, the 2010
edition of the said regulations (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 Chamber entered into the substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the Chamber
emphasised that in the following considerations it will refer only to the facts, arguments
and documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
In this respect, the DRC firstly acknowledged that the Claimant and the Respondent
signed an employment contract on 27 June 2011 valid until 30 June 2013.
6.
Equally, the members acknowledged that it remained undisputed that the Respondent
had unilaterally terminated the employment contract with the Claimant on 6 October
2011 by written notice, according to art. 4.2 c) alleging that his performance was not
enough to play in a professional club.
7.
In continuation, the Chamber took note that the Claimant lodged a claim against the
club for termination of contract without just cause, claiming outstanding remuneration
and compensation amounting to USD 136,500 plus interests and procedural costs.
8.
In this respect, the members of the DRC took note that the Claimant held that the
article 4.2 c) of the contract is null and void and thus, not applicable. Moreover, the
Claimant pointed out that the dissatisfaction with the performance of a player does not
constitute a just cause to terminate the contract.
9.
On the other hand, the DRC acknowledged that the Respondent declared that the
Claimant showed to be unprofessional and was warned by the Respondent regarding
his behaviour and his “physical unfitness”, without showing any improvement. As a
consequence, the Respondent stating having decided to terminate the contract with the
Claimant and stop the payment of his salaries, in accordance with art. 4.2 c) of the
contract, considering this as a “negative situation”.
10.
The members of the Chamber highlighted that the underlying issue in this dispute,
considering the diverging position of the parties, was to determine if the unilateral
termination of the contract by the Respondent, on 6 October 2011, was with or without
just cause. The Chamber also underlined that, subsequently, if it were found that the
contract was terminated without just cause, it would be necessary to determine the
consequences for the party that was responsible for the early termination of the
contractual relation.
Player A, from country E / Club R, from country A
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11.
In this respect, the Chamber pointed out that, as a general rule, a party may terminate
an employment contract for just cause at any time (cf. art. 14 of the Regulations). The
Chamber noted that in the case at stake, the Respondent had terminated the contract
for “negative situations” (in accordance with clause 4.2 c) of the contract), indicating
the alleged poor performance and unprofessional behaviour of the Claimant as reasons
for the early termination of the employment contract..
12.
In this regard, the Chamber referred to its well-established jurisprudence according to
which an alleged poor performance of a player could not justify a premature
termination of an employment contract by a club as the assessment of the performance
of a player is a subjective perception which could not be measured on an objective scale
and therefore, has to be considered as inadmissible grounds for premature termination
of an employment contract.
13.
In this context, and for the sake of completeness, the Chamber also focussed its
attention on the said art. 4.2 c) of the contract, which reads as follows: “4.2 This
contract may be terminated by the request of the [Respondent] in the following cases
stated below: c) In the case of negative situations the [Respondent] has authority to
break the contract unilaterally and to stop the payment for [Claimant].”
14.
In this regard, the Chamber took into account that such clause appears to be unilateral
and to the benefit of the Respondent only. What is more, this criteria of ”negative
situations” could not be take into account unilaterally and left to the fully discretion of
the Respondent to terminate the contract. In the light of such potestative character of
the pertinent contractual clause, the members of the Chamber agreed that art. 4.2 c) of
the contract is not acceptable.
15.
Therefore, the Chamber concurred that the said art. 4.2 c) of the contract does not
constitute a reason that can be validly invoked nor a legal basis to unilaterally terminate
the contract. Consequently, the Chamber rejected the Respondent’s argument in this
respect.
16.
The Chamber stated that in view of all of the above, the Respondent had no just cause
to unilaterally terminate the employment contract with the Claimant and had
therefore, terminated the employment contract without just cause.
17.
Having established that the Respondent is to be held liable for the early termination of
the employment contract without just cause, the Chamber focussed its attention on the
consequences of such breach of contract. 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 in addition to
any outstanding payments on the basis of the relevant contract.
18.
Regarding the outstanding remuneration, the members of the DRC first took note that,
on one hand, the Claimant alleged that the Respondent failed to pay part of the initial
payment for the season 2011/2012, i.e. USD 1,000, as well as the monthly salaries for
August and September 2011 in the aggregate amount of USD 10,000. On the other
Player A, from country E / Club R, from country A
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hand, the Respondent alleged having paid all salaries and bonuses until the termination
of the contract.
19.
At this point, the members of the DRC referred to the general legal principle of the
burden of proof and highlighted that, according to art. 12 par. 3 of the Procedural
Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of
proof. In this context, the Respondent had failed to present documentary evidence
demonstrating that it had in fact paid the Claimant the residual part of the initial
payment due for the season 2011/2012 and the monthly salaries for the months of
August and September 2011.
20.
In this context and considering the fact that the contract was considered terminated as
of 6 October 2011 (cf. no. II/6. above), the Chamber decided that the Respondent is
liable to pay to the Claimant the amount of USD 11,000 corresponding to the abovementioned outstanding remuneration.
21.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. as of the date of claim, i.e. 14
October 2011.
22.
In continuation, the Chamber focussed 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.
23.
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 which
the parties had beforehand agreed upon an amount of compensation payable by either
contractual party in the event of breach of contract. Consequently, the Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
24.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that the said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may be taken into account at the discretion
of the deciding body.
Player A, from country E / Club R, from country A
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25.
Equally, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account the remuneration due to the Claimant in
accordance with the contract as well as the time remaining on the same contract, as
well as the professional situation of the Claimant after the early termination occurred
until the present moment.
26.
Also the Chamber took into account that the Claimant, for his part, claims the amount
of USD 125,500 as compensation for breach of contract, allegedly corresponding to the
remaining value of the pertinent employment contract as of the moment on which the
breach of contract occurred. In particular, the DRC took note that the aforementioned
amount is composed of the monthly salaries from October 2011 until June 2013, the
initial payment for the season 2012/2013 as well as bonuses for the seasons 2011/2012
and 2012/2013
27.
At this point, the Chamber considered that the bonuses were handwritten in the
version of the contract submitted by the Claimant, while the version of the contract
submitted by the Respondent did not include any reference to bonuses.
Notwithstanding the aforementioned, the DRC took note that the clause inserted in the
version of the contract provided by the Claimant was vague and did not establish the
purpose of the bonuses. Moreover, in view of its undeniably variable character and
uncertainty from one season to another, the Chamber could not establish beyond doubt
that the Claimant would have been paid bonuses and, if any, in what proportion.
Consequently, the DRC had no other alternative but to refuse to take into consideration
said bonuses while assessing the residual value of the contract. The members of the DRC
also recalled the principle of burden of proof and stressed that the Claimant had
neither presented any documentary evidence proving that he would have been entitled
to bonus payments nor explained the purpose of the bonuses.
28.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract as from its
date of termination by the Respondent, i.e. 6 October 2011, until 30 June 2013, and
concluded that the Claimant would have received in total the amount of USD 122,000
as remuneration had the contract been executed until its expiry date. Consequently, the
Chamber concluded that the amount of USD 122,000 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case at
hand.
29.
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 amount of compensation for
breach of contract in connection with the player’s general obligation to mitigate his
damages.
Player A, from country E / Club R, from country A
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30.
The Chamber recalled that on 20 January 2012, the Claimant concluded a contract with
Club F, from country B, valid until 31 October 2012, in accordance with which he was
entitled to a monthly salary of EUR 1,300. In particular, the salary for January 2012 “will
be calculated from the day of the signing of this contract”. The DRC further recalled
that on 22 February 2013, the Claimant concluded a contract with the Club D, from
country C, valid until 21 February 2014, on accordance with which he was entitled to a
monthly salary of currency of country C 28,000,000.
31.
The Chamber concurred that the approximate amount of USD 29,000 under the new
employment contracts signed by the Claimant shall be taken into consideration in the
calculation of the amount of compensation for breach of contract in the case at hand.
32.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand as well as the Claimant’s general obligation to mitigate
his damage, the Chamber decided to partially accept the Claimant’s claim and that the
Respondent must pay the amount of USD 93,000, which was considered reasonable and
proportionate as compensation for breach of contract in the case at hand.
33.
In addition, taking into account the Claimant’s request, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date of this decision until the date of effective payment.
34.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to procedural costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
35.
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, Player K, is partially accepted.
2.
The Respondent, Club R, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, outstanding remuneration in the amount of USD 11,000
plus
interest
at
5%
p.a.
on
the
said
amount
as
of
14 October 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 in the amount of USD 93,000 plus interest at
5% p.a. on the said amount as of 29 November 2013 until the date of effective
payment.
Player A, from country E / Club R, from country A
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4.
In the event that the above-mentioned amounts (cf. points 2 and 3) plus interest 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 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 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 A, from country E / Club R, from country A
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