Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 6 November 2014,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 January 2013, the player from country B, Player A (hereinafter: the Claimant),
and the club from country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract), valid as of the date of signature
until 30 November 2013.
2.
The contract specifies, inter alia, that the Respondent is to provide the Claimant with
a monthly salary amounting to USD 10,000 payable at the end of each month.
3.
Article 3 of the contract stipulates that “should a player unable to attend training
sessions or fallen sick, he should make a report as soon as possible to Club C [the
Respondent] and will indicate as to when will he resume training. This must be
supported by a medical leave receipt signed by the authorised officer from the
approved list of medical facilities. This should be submitted to Club C [the
Respondent] immediately. Player will be allowed not attend training sessions for a
period of not exceeding 14 days and will be receiving full salary/allowance for the
month. For a period exceeding 14 days salary will be paid at 50%”.
4.
Article 4 of the contract also foresees the following:
“a. The player [the Claimant] shall play football to the best of his ability and with
commitment.
b. The player [the Claimant] shall play in all football matches in which he is selected
to play for Club C [the Respondent] and to attend at any place and time for the
purposes of or reasons related to training in accordance with instruction given by
authorised official of Club C [the Respondent].”
5.
Pursuant to article 5.b of the contract, “Club C [the Respondent] is entitled to claim
compensation from the Player [the Claimant] where Club C [the Respondent] is
satisfied that the Player [the Claimant] has deliberately breached the instructions of
the coach or team officials or in a game has committed a deliberate foul which has
resulted in the player [the Claimant] receiving a yellow card and/or red card provided
that the total compensation sum that may be deducted from the player’s [the
Claimant’s] salary shall not exceed 50% of his salary for that month”.
6.
According to article 8 of the contract, the Respondent can put an end to the contract
“by giving one-month notice, Such notice may be given with or without just cause
and may be given irrespective of whether or not any disciplinary action has, is or
might be taken against the player [the Claimant]”.
7.
On 8 May 2013, the Respondent terminated the contract in writing. In this respect,
the termination notice sent by the Respondent to the Claimant states inter alia that
the said notice serves as one month notice to terminate the contract.
Player A, country B / Club C, country D
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8.
On 30 October 2013, the Claimant lodged a complaint before FIFA against the
Respondent for termination of the contract without just cause, requesting the
following amounts:
- USD 70,000 as compensation corresponding to the residual value of the contract;
- USD 30,000 as damages “due to sudden interruption of career”.
9.
The Claimant allegedly attempted to settle the dispute amicably with the
Respondent, by means of a letter dated 12 June 2013 sent to the Respondent.
However, the Respondent apparently refused such settlement.
10. In its reply, the Respondent sustains that its decision to terminate the contract was
due to the Claimant’s behaviour. In particular, the Respondent evokes two matches
against the club from country F, Club E, on 21 February 2013 and against the club
from country H, Club G, on 1 May 2013 during which the Claimant apparently walked
off the pitch during an ongoing match without informing the head coach of any
possible reason. In this respect, the Respondent presented a correspondence dated 30
July 2013 stating the aforementioned facts and addressed to the alleged
Respondent’s lawyer.
11. The Respondent also points to the various alleged fights with teammates initiated by
the Claimant which, according to the Respondent, seriously affected the teamwork
and performance. The Respondent further holds that the Claimant voluntarily
isolated himself during trainings and pretexted an ankle injury.
12. Therefore, the Respondent concludes that the Claimant was in breached of articles 3,
4.a and 4.b of the contract and consequently, the Respondent alleges having lawfully
terminated the contract pursuant to article 8 of the contract.
13. In this context, the Respondent requests the Claimant to pay compensation based on
article 5.b of the contract and article 22 of the FIFA Regulations.
14. In spite of having been invited on two occasions to specify the claimed amount
pertaining to its request, the Respondent did not submit further comments in this
respect.
15. Upon FIFA’s request, the Claimant asserted having remained unemployed from May
to November 2013.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge (hereinafter: the Chamber or DRC) analysed whether it
was competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 30 October 2013. Consequently, the 2012
edition of the Rules Governing the Procedures of the Players’ Status Committee and
Player A, country B / Club C, country D
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the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable
to the matter at stake (cf. art. 21 par. 1 and 2 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014), the
DRC judge is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player
from country B and a club from country D, and which value does not exceed CHF
100,000.
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 2 of the Regulations on the Status and Transfer of Players (edition
2014), and considering that the present claim was lodged in front of FIFA on 30
October 2013, the 2012 edition of said Regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
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 submitted by the parties. 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.
5.
In this respect, and in first instance, the DRC judge recalled that on 1 January 2013
the parties had signed an employment contract valid as from the date of signature
until 30 November 2013, in accordance with which the Claimant was entitled to
receive a monthly salary of USD 10,000.
6.
The DRC judge also took due note of the termination of the contract by the
Respondent by means of a written notice dated 8 May 2013 sent to the Claimant. At
this stage, the DRC judge took due note that there was no reason for the
termination indicated in the said written notice.
7.
In continuation, the DRC judge took into account that, on 12 June 2013, the
Claimant pointed out to the Respondent, in writing, that it had terminated the
contract without just cause. Moreover, the DRC judge noted that in the
aforementioned letter addressed to the Respondent, which apparently remained
unanswered, the Claimant had sought an amicable settlement of the present
dispute and warned the Respondent of the possible consequences. Additionally, the
DRC judge observed that the stated letter apparently remained unanswered.
8.
Furthermore, the DRC judge duly noted that the Respondent, for its part, sustained
having duly terminated the contract based on the Claimant’s bad behaviour. In
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particular, the Respondent held that the Claimant walked off the pitch on two
occasions and initiated fights with his teammates, as stated by the correspondence
dated 30 July 2013 addressed to the Respondent’s lawyer.
9.
In this context, the DRC judge acknowledged that he had to examine whether the
reasons put forward by the Respondent could justify the termination of the contract
in the present matter.
10.
In this respect, the DRC judge was eager to emphasise that only a breach or
misconduct which is of a certain severity justifies the termination of a contract. In
other words, only when there are objective criteria which do not reasonably permit
to expect a continuation of the employment relationship between the parties, a
contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order for an employer to ensure the employee’s fulfilment of
his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can
only ever be an ultima ratio measure.
11.
In view of the above, the DRC judge first of all observed that the Respondent never
contested that the Claimant had attempted to settle the matter amicably on 12 May
2013 and that it refused such amicable settlement without any reason. Equally, the
DRC judge observed that there was no reason specified by the Respondent in the
termination notice dated 8 May 2013. Moreover, the DRC judge noticed that there
was no evidence submitted by the Respondent which could justify the early
termination of the contract. Indeed, the DRC judge duly noted that the
correspondence referring to the Claimant’s alleged bad behaviour was dated 30 July
2013, thus after the Respondent had terminated the contract. In any case, the DRC
judge was of the firm opinion that the Respondent did not have just cause to
prematurely terminate the employment contract with the Claimant, since such
alleged conduct could not legitimately be considered as being severe enough to
justify the termination of the contract, and that there would have been more
lenient measures to be taken (e.g., among others, a suspension or a fine) in order to
sanction the Claimant for his alleged bad behaviour.
12.
On account of the above, the DRC judge decided that the Respondent had no just
cause to unilaterally terminate the employment relationship with the Claimant and,
therefore, concluded that the Respondent had terminated the employment contract
without just cause on 8 May 2013 and that, consequently, the Respondent is to be
held liable for the early termination of the employment contact without just cause.
13.
Having established that the Respondent is to be held liable for the early termination
of the employment contract, the DRC judge focused his attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC judge decided that the Claimant is entitled to receive from the
Respondent an amount of money as compensation for breach of contract in
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addition to any outstanding payments on the basis of the relevant employment
contract.
14.
First of all, the DRC judge reverted to the termination notice dated 8 May 2013 and
serving as one-month notice. Therefore, the termination of the contract is deemed
to have been terminated as of 8 June 2013. As a result, the DRC judge concluded
that the player’s salary for May 2013 in the amount of USD 10,000 is due as
outstanding.
15.
In continuation, the DRC judge focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
DRC judge 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.
16.
In application of the relevant provision, the DRC judge held that he first of all had
to clarify as to whether the pertinent employment 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.
17.
In this regard, the DRC judge recalled that according to art. 5.b of the contract,
“Club C [the Respondent] is entitled to claim compensation from the Player [the
Claimant] where Club C [the Respondent] is satisfied that the Player [the Claimant]
has deliberately breached the instructions of the coach or team officials or in a
game has committed a deliberate foul which has resulted in the player receiving a
yellow card and/or red card provided that the total compensation sum that may be
deducted from the player’s salary shall not exceed 50% of his salary for that
month”.
18.
In this respect, the DRC judge took into account that article 5.b of the contract
appears to be unilateral and to the benefit of the Respondent only. In the light of
such unilateral character of the pertinent contractual clause, the DRC judge
concluded that it cannot be taken into consideration.
19.
Likewise, the DRC judge concluded that the said article 5.b of the contract does not
clearly indicate the exact monetary value for compensation and, therefore, cannot
be taken into consideration.
20.
As a consequence, the DRC judge determined that the amount of compensation
payable by the Respondent had to be assessed in application of the parameters set
out in art. 17 par. 1 of the FIFA Regulations. In this regard, the DRC judge
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emphasised beforehand that each request for compensation for contractual breach
has to be assessed by the DRC judge on a case-by-case basis taking into account all
specific circumstances of the respective matter.
21.
In casu, the DRC judge took note that, in accordance with the contract signed by the
Claimant and the Respondent, which was to run until 30 November 2013, after the
breach of contract occurred on 8 May 2013, the Claimant was to receive the total
amount of USD 60,000, made up of six monthly salaries in the amount of USD
10,000 each, during the remaining term of the contract.
22.
As a consequence, and bearing in mind that the Claimant had not been able to
mitigate damages since he remained unemployed between the date of termination
of the contract by the Respondent and the end date of the contract, the DRC judge
concluded by deciding that the Respondent has to pay the total amount of USD
60,000 to the Claimant, as compensation for breach of contract.
23.
Reverting to the Claimant’s petition regarding damages “due to not providing
necessary and adequate medical care to the player after suffering an injury on a
match”, the DRC judge agreed that such claim is to be rejected as it is not
sufficiently specified and due to a lack of legal basis.
24.
The DRC judge concluded his deliberations in the present matter by establishing
that any further claims lodged by the Claimant are rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay to the Claimant outstanding remuneration in the
amount of USD 10,000, within 30 days as from the date of notification of this
decision.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of USD 60,000, within 30 days as from the date of notification of this
decision.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
time limits, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limits and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
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6.
The Claimant is directed to inform the Respondent 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 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 DRC judge:
Markus Kattner
Deputy Secretary General
Encl. as mentioned
Player A, country B / Club C, country D
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