Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 February 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Zola Majavu (South Africa), member
on the claim presented by the player,
L,
as Claimant
against the club,
FC R,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 22 February 2008, the player, L (hereinafter: the Claimant), born on 14 February
1974, and the club, FC R (hereinafter: the Respondent), concluded an employment
contract valid as from 18 January 2008 until 18 June 2009.
2.
According to this contract, the Claimant was to receive the following amounts from the
Respondent:
From 18 January 2008 until 18 June 2008
From 19 June 2008 until 18 June 2009
3.
EUR 10,800 per month (5 months) +
EUR 10,000 to be paid on 21
February 2008
TOTAL: 64,000
EUR 15,000 per month (12 months)
+
EUR 25,000 to be paid on 20 June
2008
TOTAL: EUR 205,000
Furthermore, the Respondent undertook to pay the following amounts and expenses to
the Claimant:
- bonuses “in conformity with [the] Internal Regulations” for “winning the
championship, participating in the UEFA group stage and winning matches in the R
championship”,
- a car at the player’s disposal during the entire period of contract,
- two flight tickets per season.
4.
Finally, art. 3.1.8. of the employment contract stipulates that “FC S has the right to
cancel this Convention till 25.04.2008”.
5.
On 17 September 2008, the Claimant lodged a claim with FIFA for breach of contract
against the Respondent. According to the Claimant, on 9 May 2008, the Respondent
sent a notice to his agent in order to inform him that the Respondent was thereby
exercising its option to cancel the employment contract as per art. 3.1.8. of the said
contract. This notice was stamped and dated as of 21 April 2008 by the Respondent, and
also bears the stamp of the R Professional Football League, with the date of 23 April
2008. Thereafter, the Claimant allegedly tried to contact the Respondent in order to
obtain some explanations, but the latter only informed him that he should no longer
take part in the trainings.
6.
In this respect, the Claimant underlined that he had initially expressed his disagreement
towards the inclusion of such an abusive clause (i.e. art. 3.1.8. of the employment
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contract) in his contract, but that the clause was finally maintained. The Claimant
further alleges that such unilateral termination clause is invalid and in violation of art.
16 and 18 par. 2 of the Regulations on the Status and Transfer of Players (hereinafter:
the Regulations). Furthermore, should the Dispute Resolution Chamber consider that
the clause contained in art. 3.1.8. of the employment contract is valid, the Claimant
alleged that the Respondent’s option to terminate the contract unilaterally was
irregularly exercised by the latter, as the Claimant was only informed of the notice by
his agent on 9 May 2008, thus after the deadline set out in art. 3.1.8. of the
employment contract, i.e. 25 April 2008. Additionally, the Claimant asserts that, after 21
April 2008 (i.e. date of the Respondent’s notice), he still played two matches with the
club, on 2 and 8 May 2008, whereas, given the Respondent’s position, the contract had
already been terminated.
7.
In view of the above, the Claimant, after having amended his claim on 5 May 2009,
claimed the following amounts for breach of contract without just cause by the
Respondent:
EUR 5,000
EUR 25,000
EUR 205,000
EUR 35,000
EUR 6,000
EUR 100,000
EUR 18,800
8.
half of the EUR 10,000 to be paid on 21 February 2008
alleged bonus for qualifying for the UEFA championship
total amount due from 19 June 2008 to 18 June 2009 (cf.
point 2. above)
Loss on match bonuses
Car disposal from 19 June 2008 to 18 June 2009 (12 x EUR
500)
Moral damages for breach of contract
Legal fees (i.e. 5% of the amounts claimed)
TOTAL: 394,800 + interest as per legal rate as from 18
September 2008
The Respondent, for its part, rejected the Claimant’s claim entirely. In this respect, the
Respondent underlined that the employment contract included a clause stipulating that
it could terminate the contract until 25 April 2008. Moreover, the Respondent asserted
that, by signing the employment contract, the Claimant had accepted the
aforementioned clause. Thus, the Respondent came to the conclusion that the
provisions of the Regulations pertaining to the unilateral termination of an
employment contract did not apply in the case at hand, since both parties had agreed
on the possibility for the Respondent to terminate the employment contract in
question. Finally, the Respondent alleged that the termination notice had been duly
notified to the R Professional Football League on 23 April 2008, as well as to the
Claimant.
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9.
On 16 December 2009, the Claimant informed FIFA that, following the termination of
his employment contract with the Respondent, he did not sign with any other club. The
player considers the termination of the employment relationship by the Respondent as
leading to his retirement from professional football.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the
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 17 September
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. 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 2009) 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 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 2009), and
considering that the present claim was lodged on 17 September 2008, the 2008 edition
of the said regulations (hereinafter: “the Regulations”) is applicable to the matter at
hand as to the substance.
4.
The competence of the Single Judge of the Players’ Status Committee and the
applicable regulations having been established, and entering into the substance of the
matter, the Single Judge acknowledge the above-mentioned facts as well as the
documentation contained in the file.
5.
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 acknowledged that the Claimant and the Respondent signed an employment
contract on 22 February 2008 valid as from 18 January 2008 until 18 June 2009. The
Claimant, on the one hand, asserts that the Respondent breached the contract by
unilaterally terminating the said employment contract and by notifying him, via his
agent, of such unilateral termination in an inappropriate manner, as well as excluding
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him from the trainings, although he was allegedly asked to play in two matches, on 2
and 8 May 2008, following the date of the termination notice, i.e. 21 April 2008. In this
regard, the Claimant is of the opinion that clause 3.1.8. contained in the employment
contract and which the Respondent relied on to unilaterally terminate the contract is
abusive and cannot be considered as valid. The Respondent, on the other hand, rejects
the Claimant’s claim entirely and submits that it had the right to terminate the
employment contract one-sidedly in accordance with a contractual clause contained in
the contract, which was freely agreed between the parties.
6.
In this context, and before examining the question of the early termination of the
employment contract, the Chamber noted that the Respondent had not contested the
allegation of the Claimant, according to which he had not received the amount of EUR
5,000 which was due on 21 February 2008.
7.
The Dispute Resolution Chamber therefore held that, in accordance with the basic legal
principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the
contract entered into with the Claimant and, consequently, pay the outstanding
remuneration in the amount of EUR 5,000 which is due to the latter.
8.
Based on the foregoing, the members of the Dispute Resolution Chamber decided that
the Claimant was to receive the amount of EUR 5,000 as outstanding remuneration, to
be increased with interest at the rate of 5% per year as from 18 September 2008 until
the date of effective payment.
9.
In continuation, the Chamber focused its attention on art. 3.1.8. of the employment
contract, which reads as follows: “FC S has the right to cancel this Convention till
25.04.2008”, and deemed essential to analyse whether such clause could be considered
as being valid, in particular taking into consideration the parties’ diverging positions in
this respect.
10.
In this regard, the Chamber considered that the possibility granted to the Respondent
by this clause to prematurely terminate the contract without having to invoke any
reason for such termination is clearly unilateral and to the benefit of the Respondent
only, as well as abusive. What is more, it leaves an unacceptable discretion to the
Respondent to decide whether it wishes to continue the contractual relationship. In the
light of such abusive and even potestative character of the pertinent contractual clause,
the members of the Chamber agreed that art. 3.1.8. of the employment contract is not
valid and cannot thus be validly invoked nor constitute a legal basis to unilaterally
terminate the employment contract.
11.
Furthermore, for the sake of completeness and in reply to the Respondent’s argument
that by signing the employment contract, the player had agreed to the contents of
clause 3.1.8. of the said contract, the Chamber wished to emphasise that the nullity of
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such potestative clause is a logical consequence of the application of the paramount
principle of maintenance of contractual stability between professionals and clubs
mentioned in Chapter IV of the Regulations. With the foregoing in mind, the Chamber
considered that the defence of the principle of contractual stability shall undoubtedly
prevail upon the consent of both parties to an employment contract which would have
agreed upon a clause which is in clear violation of the said principle. Therefore, the
members of the Chamber concluded that the previously mentioned argument
developed by the Respondent could not be upheld.
12.
In view of the above, the Dispute Resolution Chamber came to the firm conclusion that
the argumentation of the Respondent that it was entitled to terminate the contract
unilaterally by virtue of art. 3.1.8. of the employment contract could not be upheld by
the Chamber. At this stage, the Chamber recalled that the Respondent had not
submitted any other reason which might justify the unilateral termination of the
employment contract in the case at stake. As a consequence, the Chamber concluded
that the Respondent terminated the contract unilaterally and without just cause on 21
April 2008.
13.
In addition and in view of the above-mentioned considerations, the Chamber agreed
that it was not relevant to analyse the question as to whether the termination of the
employment contract was notified to the Claimant in a timely manner.
14.
Having established that the Respondent is to be held liable for the early termination of
the employment contract without just cause, the Chamber lent particular emphasis to
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.
15.
In view of the aforementioned, 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 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 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
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contractual party in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
17.
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.
18.
In view of the above, prior to assessing the relevant criteria in determining the amount
of compensation due to the Claimant by the Respondent, the Chamber first of all
recalled that the Claimant is claiming the following amounts as compensation:
-
-
EUR 205,000 corresponding to the total value of the second year of contract;
EUR 25,000 corresponding to an alleged bonus for the qualification for the UEFA
Championship;
EUR 35,000 corresponding to an alleged loss on future bonuses;
EUR 6,000 corresponding to an alleged damage for not being able to make use
of a car as provided for in the employment contract during the second year of
contract (the value of the car being set at EUR 500 monthly; thus 6 x EUR 500);
and
EUR 100,000 as additional compensation for the damage suffered in view of the
breach of contract by the club;
Thus in total EUR 371,000, plus interest at the “legal rate” as from 18 September 2008
(i.e. the day following the date of the claim) until effective payment.
19.
Having recalled the aforementioned, 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. In this respect, the
Chamber took into account that the monthly salary of the Claimant was of EUR 10,800
at the time of the unilateral termination of the contract (i.e. the first year of contract),
and that his earnings would have been in the amount of EUR 15,000 during the second
year of contract, these amounts being increased by various bonuses and advantages.
Furthermore, the Chamber pointed out that more than one year of contract was
remaining at the time of its unilateral termination by the Respondent. Finally, the
Chamber remarked that the Claimant had apparently remained unemployed until the
expiry date of the employment contract, i.e. 18 June 2009, and that the termination of
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the employment relationship with the Respondent had meant his retirement from
professional football.
20.
Equally, the members of the Chamber highlighted that at the moment of the early
termination of the employment contract on 21 April 2008, the Respondent had fulfilled
its financial obligations towards the Claimant, except for an outstanding remuneration
of EUR 5,000. The Chamber deemed that it should consider this fact as a mitigating
factor when determining the amount of compensation to be paid by the Respondent.
21.
Additionally, in respect of the Claimant’s claims regarding bonuses in the amount of
EUR 25,000 and EUR 35,000 respectively, the Chamber agreed that, for the bonus in the
amount of EUR 25,000, in accordance with the rule of burden of proof, the Claimant
would have had to at least provide evidence that at the time of the termination of the
employment contract, i.e. 21 April 2008, the club had already qualified for the UEFA
Championship, which he failed to do. Regarding the second bonus in the amount of
EUR 35,000 the Chamber remarked that in accordance with its well-established
jurisprudence, the Claimant could not obtain a bonus which solely depended on the
future performances of the club. Therefore, the Chamber decided that the Claimant’s
claims for bonuses must be rejected.
22.
Subsequently, the Chamber, regarding the Claimant’s claim for compensation for not
being able to make use of a car during the second year of contract, wished to
emphasise that it could not take this particular claim into account since the Claimant in
accordance with its constant jurisprudence.
23.
Finally, the Dispute Resolution Chamber held that the Claimant’s claim for legal costs is
rejected in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence.
24.
In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1
of the Regulations as well as the circumstances of the case at hand, the amount of
compensation of EUR 150,000 would appear fair and appropriate.
25.
As a consequence, the Dispute Resolution Chamber concluded its deliberations on the
present dispute by deciding that the Respondent has to pay the total amount of EUR
155,000 to the Claimant, consisting of EUR 5,000 of outstanding remuneration and of
EUR 150,000 as compensation for breach of contract and that any further claims lodged
by the Claimant are rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, L, is partially accepted.
2.
The Respondent, FC R, has to pay to the Claimant outstanding remuneration amounting
to EUR 5,000, plus 5% interest per year as from 18 September 2008 until the date of
effective payment, within 30 days as from the date of notification of this decision.
3.
The Respondent, FC R, has to pay to the Claimant compensation for breach of contract
in the amount of EUR 150,000 within 30 days as from the date of notification of this
decision. In the event that this amount of compensation is not paid within the stated
time limit, interest at the rate of 5% per year will fall due as of expiry of the time limit
until the date of effective payment.
4.
In the event that the amounts 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’s Disciplinary Committee for consideration and a formal decision.
5.
Any further request filed by the Claimant is rejected.
6.
The Claimant, L, is directed to inform the Respondent, FC R, immediately of the bank
account number to which the remittances are 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:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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