Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 December 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
Joaquim Evangalista (Portugal), member
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 27 January 2015, the Player A from country B (hereinafter: the player or
Claimant) and the Club C from country D (hereinafter: the club or Respondent)
concluded an employment contract valid as from 27 January 2015 until 31 May
2015 (hereinafter: the contract).
2.
According to the contract, the player was inter alia entitled to receive during the
contractual period:
4 monthly salaries of 1,443 each;
a sign-on fee of 3,850.
Further, according to the contract, the last salary was due ‘after the end of the
last game of the season’.
3.
Article 5 of the contract inter alia stipulates: ‘The player pledges to apply all his
energy and sporting ability without restraint for the benefit of the CLUB, to do his
utmost to maintain and enhance the CLUB, and to refrain from doing anything
which could generally be detrimental to the CLUB, in particular, before, during,
and after events in which the CLUB participate. […] In accordance with these
principles, the Player is subject to the following specific obligations: […] o. Not to
leave the country without the CLUB written approval’.
4.
Further, article 7 of the contract stipulates: ‘Club’s Obligations * During the
contractual period, the CLUB will make reasonable arrangement to provide the
following elements to the Player: […] Proper playing and training places, as well
as other infrastructure, as per the Football Association of country D’s and OPL
guidelines […] Sportswear […].
5.
Article 9 of the contract provides for the following clause: ‘Contract termination
by the Club or the Player: The CLUB may terminate this Contract, before its expiry
date and the player have no right to ask for any financial dues […]’.
6.
The player states that on 28 February 2015, the club unilaterally terminated the
contract as per 1 March 2015 and further failed to pay him the total amount of
USD 16,310.
7.
On 24 April 2015, the player put the club in default for not having paid the
amount.
Player A, country B / Club C, country D
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8.
On 5 June 2015, the player lodged a claim before FIFA against the club,
requesting the amount of USD 16,310, specified as follows:
4 monthly payments of 1,443, according to the player corresponding to the
total amount of USD 15,000;
an airplane ticket city E - city F amounting to USD 950, as well as additional
costs of USD 110 to change the departure date of the flight;
the amount of USD 250 as costs for a pair of new football boots, based on
article 7 of the contract.
Further, the player requested ‘statutory default interest’ on the total amount of
USD 16,310 as of 31 May 2015 until ‘full payment, within 15 days’.
9.
In its reply to the claim of the player, the club stated that on 26 February 2015 its
board decided to terminate the contract of the player, because – despite several
requests from the board of directors and the trainer to improve his performance –
he continued to show ’week performance’. Therefore, on 28 February 2015 and in
line with article 9 of the contract, the club sent him a letter in which it terminated
the player’s contract.
10.
Further, the club states that the player ‘humped over all the procedures’ existing
in country D and ‘submitted his complaint directly to FIFA’. As a result, the club
assumes that the player had no objection against the decision to terminate his
contract, however the club also explicitly states that ‘the player has the right to
complain to the authorities in the FIFA’.
11.
In addition, the club states that the player did not want to receive his ‘dues from
the club’ and that he violated article 5 of the contract, by leaving the country,
‘without any consent of the club’. The club holds that the player has no rights to
ask the club for compensation.
12.
Finally, the player informed FIFA that after the termination of the contract, he did
not sign a new employment contract with another club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 5 June 2015. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter:
Player A, country B / Club C, country D
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Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 and par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2015) 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 from country B and a club from country
D.
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 2015), and considering that the present claim was lodged on 5 June 2015,
the 2015 edition of said regulations (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 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.
First of all, the members of the Chamber acknowledged that the parties were
contractually bound by means of an employment contract valid as from 27
January 2015 until 31 May 2015.
6.
The player, on the one hand, maintained that the club unilaterally terminated the
contract as per 1 March 2015 without just cause and failed to comply with its
contractual obligations, by ceasing the payment of his receivables as from
February 2015.
7.
The Chamber noted that the club, on the other hand, rejected the claim put
forward by the player. According to the club, it had terminated the contract on
the basis of the weak performances of the player as per 1 March 2015, which was
– according to the club – in line with article 9 of the contract. Furthermore, the
club holds that the player did not want to receive his ‘dues from the club’ and he
violated article 5 of the contract, by leaving the country without permission of the
club.
Player A, country B / Club C, country D
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8.
The members of the Chamber highlighted that the underlying issue in this
dispute, considering the diverging position of the parties, was to determine as to
whether the club had terminated the contract as per 1 March 2015 with or
without just cause and subsequently, it would be necessary to determine the
consequences of the early termination of the contractual relationship.
9.
Having established that it remained undisputed between the parties that the club
terminated the employment contract on 28 February 2015 as per 1 March 2015,
the Chamber turned its attention to the question as to whether the contract had
been terminated by the club with or without just cause.
10.
First and foremost, in the light of the main reason at the basis of the termination
of the contract in the matter at hand, i.e. the player’s alleged poor performance,
the Chamber wished to emphasise that the alleged poor performance of a player,
is a purely unilateral and subjective evaluation by the club, the Chamber
emphasised that poor or unsatisfactory performance cannot, by any means, be
considered as a valid reason to terminate the contract of a player, as it is the result
of a purely subjective perception, not measurable in objective criteria. Thus, it
cannot be considered as a just cause for the premature termination of an
employment contract, not even in the case it is contractually agreed.
11.
As regards the club’s allegations that the player did not want to receive his ‘dues
from the club’ and that he left the country without the permission of the club, the
Chamber recalled that according to the legal principle of the burden of proof
contained in 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.
12.
In this respect, the members of the Chamber noted that the club did not submit
any evidence of its allegations that the player had no objection against the
termination of the contract and that he refused to receive his ‘dues from the
club’. Further, the Chamber stressed that the question whether the player had left
the country is irrelevant as the club had already terminated the contract,
therefore there was no longer any obligation for the player to be at the disposal
of the club.
13.
On account of all of the above, the members of the Chamber decided that the
club terminated the contract as per 1 March 2015 without just cause.
14.
In continuation, prior to establishing the consequences of the breach of contract
without just cause by the player in accordance with art. 17 par. 1 of the
Player A, country B / Club C, country D
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Regulations, the Chamber held that it had to address the issue of any unpaid
remuneration at the moment the contract was terminated by the club.
15.
In his statement of claim, the player alleges that his remuneration relating to
February, March, April and May 2015 was to be considered outstanding. The club,
for its part, confirmed that it had ceased the payment of the player’s
remuneration after the termination of the contract on 28 February 2015 and
failed to prove that it had paid the player’s salary for February 2015.
16.
On account of the aforementioned, and bearing in mind, as stated above, that the
contract was terminated by the club as per 1 March 2015 and bearing in mind the
principle pacta sunt servanda, the Chamber decided that the club, failed to remit
to the player, until 1 March 2015, his contractually agreed salary of 1,443 for the
month of February 2015.
17.
With respect to the claim for reimbursement of flight tickets as lodged by the
player, the Chamber reiterated the legal principle of pacta sunt servanda, and
concluded that the contract between the player and the club did not provide for a
contractual clause, on the basis of which it could be concluded that the club had
to reimburse flight tickets to the player. As a result thereof, the members of the
Chamber decided to reject the claim of the player in this respect.
18.
Furthermore, with respect to the claim for the reimbursement of the costs of a
pair of football boots, the members of the Chamber reiterated the legal principle
of burden of proof contained in art. 12 par. 3 of the Procedural Rules, and
established that the player did not submit evidence that he effectively bought a
pair of football boots. Therefore, the Chamber decided to reject this part of the
player’s claim.
19.
Consequently, the members of the Chamber determined that the club is to pay
the amount of 1,443 as outstanding remuneration to the player, since said
amount was outstanding on the day the contract was terminated and the club
had no valid reasons to not pay this amount. In this regard, the Chamber was
eager to emphasise that, in accordance with its well-established jurisprudence in
this respect, it cannot grant any outstanding amounts in USD, as the parties had
agreed upon payment of the player’s remuneration in country D’s currency.
20.
Furthermore, and considering the player’s claim for interest, the Chamber ruled
that the club must pay 5% interest on the amount of 1,443 as from 31 May 2015.
21.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1
of the Regulations, the player is entitled to receive from the club compensation
Player A, country B / Club C, country D
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for breach of contract in addition to any outstanding salaries on the basis of the
relevant employment contract.
22.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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 player 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.
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 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 noted that art. 9 of the contract established
that if the club terminates the contract, the player is not entitled to any “dues”.
The Chamber finds it evident that such provision is abusive and to the benefit of
the club only, and therefore, determined to disregard said provision.
24.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application
of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber
recalled that said provision provides for a non-exhaustive enumeration of criteria
to be taken into consideration when calculating the amount of compensation
payable.
25.
Bearing in mind the foregoing as well as the claim of the player, the Chamber
proceeded with the calculation of the monies payable to the player under the
terms of the contract until 31 May 2015, taking into account that the player´s
remuneration until February 2015 is included in the calculation of the outstanding
remuneration. Consequently, the Chamber concluded that the amount of 4,329
(i.e. remuneration as from March 2015 until May 2015), serves as the basis for the
determination of the amount of compensation for breach of contract.
26.
In continuation, the Chamber verified as to whether the player 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.
Player A, country B / Club C, country D
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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.
27.
However, the Chamber noted that the player did not find new employment with
another club during the relevant period of time and established that as a result
thereof, no amounts shall be deducted from the amount of compensation for
breach of contract as claimed by the player.
28.
As a result, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
players’ claim and that the club must pay the amount of 4,329 as compensation
for breach of contract in the case at hand. In this regard, the Chamber reiterated
that, in accordance with its well-established jurisprudence in this respect, it cannot
grant any compensation in USD, as the parties had agreed upon payment of the
player’s remuneration in country D’s currency .
29.
In addition, taking into account the player’s request as well as the constant
practice of the Chamber, the Chamber decided that the club must pay to the
player interest of 5% p.a. on the amount of compensation as of the date on which
the claim was lodged, i.e. 5 June 2015, until the date of effective payment.
30.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
1,443 plus 5% interest p.a. as from 31 May 2015 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 for breach of contract in the amount
of 4,329 plus 5% interest p.a. on said amount as from 5 June 2015 until the date
of effective payment.
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
Player A, country B / Club C, country D
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time limits, 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.
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
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:
Markus Kattner
Acting Secretary General
Player A, country B / Club C, country D
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Encl.: CAS directives
Player A, country B / Club C, country D
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