Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Reinhard Rauball (Germany), member
Philippe Piat (France), member
Mick Mc Guire (England), member
on the claim presented by the player
G,
as Claimant
against the club
Y,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
The player, G (hereinafter: the Claimant), and the C club, Y (hereinafter: the
Respondent), entered into an employment contract (hereinafter: the contract)
with a term from 1 March 2008 to 30 October 2008.
2.
The contract signed by the parties states in its art. 7 par. 2 that the Respondent
shall pay the Claimant a salary of USD 5,000 every month.
3.
Moreover, art. 10 par. 2 no. (3) and (4) of the contract says that “The contract may
be cancelled by [the club] with immediate effect if [the player] Seriously violates
regulations or match disciplines of [the club]” or if “[the player] seriously violates
professional ethics or sports and cause serious damage to [the club’s] interest and
reputation”.
4.
On 15 August 2008, the Claimant filed a claim against the Respondent and
submitted that he had worked for the Respondent until 3 August 2008, date on
which he was allegedly “fired” by the Respondent. With regard to the exact date
of termination of the labour relationship between the Claimant and the
Respondent, the Claimant alleges that he was handed the termination notice,
dated 15 July 2008, on 3 August 2008.
5.
In this context, the Claimant holds that the Respondent breached the contract the
parties concerned had concluded and therefore asks for the payment of USD 5,000
concerning the outstanding salary of July 2008 as well as compensation
amounting to USD 17,550 for the remainder of the contract (August, September,
October 2008 and 1 November to 15 November 2008). The Claimant states that the
aforementioned amount of USD 17,550 includes the compensation for the alleged
additional period of the term of the contract from 1 November to 15 November
2008, since the season had been extended until 15 November 2008 “because of
the earthquake” (Note: In this respect, the Claimant refers to the visa application
letter the Respondent apparently sent to the C embassy, which was enclosed to
the claim and states that “[…] because of the earthquake, the C soccer league
extended till 15th Nov 2008, the contract of G extended to 15th Nov 2008 […]”).
6.
In its response dated 20 August 2008, the Respondent states that “as a result of
deregulation and refusing to listen to the dissuasion by the coach, according to
the (2) and (3) of item 2 of article X from
2008, “during the club training period, G led a woman to his room privately,
which disobeyed severely of items 21st (1) and 22nd (2) of Article IV from
bad infection of club daily management especial to the young players who […]
were severely influenced by G”.
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7.
Pertaining to the foregoing, Article IV item 21 of the “Y Contractual Athletes
Management Rules” states that if the Claimant is “causing very bad influence on
the club”, he should receive “punishment in accordance with Article I Item 2” of
the “Y Club Contractual Athletes Management Rules”. Furthermore, Article IV
item 22 of the “Y Club Contractual Athletes Management Rules” stipulates the
following: “No alcohol, tobacco, gambling, in dormitories. No strangers live in.
[…] Offenders are given punishment in accordance with Article I item 2”. “Article I
item 2”, to which the two aforementioned provisions of the “Y Club Contractual
Athletes Management Rules” refer, states that “the play who appears the
following instance will be deducted the month and the year payment and
stopping training and games, our club should be entitled to unchain the contract:
(2) going against all the club rules, teams’ management regulations and the
management detail rules”.
8.
In its reply dated 18 September 2008, the Claimant adheres to his claim and
further holds that he had never received the “Team Rules” the Respondent is
referring to in its response, neither in English nor in C.
9.
Furthermore, the Claimant holds that the Respondent dealt with the incident of
May 2008 by having internally suspended the Claimant for two C League games
scheduled on 14 June and 21 June 2008, which, according to the Claimant, also
caused him a loss of bonus payments. Equally, according to the Claimant, he was
ordered by the Respondent to train with the second team for two weeks as well as
to write two letters apologizing for the incident of May 2008. In this context, the
Claimant holds that the issue regarding the incident of May 2008 was never
brought up by the Respondent again and that he restarted to train and play
games with the first team of the Respondent after having served his suspension.
10.
In its undated final comments, which were submitted to FIFA on 30 September
2008, the Respondent holds that if it signs a contract with a foreign player, it
always gives him a copy of the “Y Club Contractual Athletes Management Rules”,
both in English and in C, and that it proceeded the same way when concluding the
employment contract with the Claimant.
11.
In addition, the Respondent adheres to the comments submitted in its response.
12.
Finally, the Claimant confirmed that he had not concluded a new employment
contract with another club in the remaining period of the contract concluded
between the parties.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber referred to art. 21 par.
2 and 3 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 15 August 2008, thus after 1 July
2008. Therefore, the Dispute Resolution Chamber concluded that the revised
Procedural Rules (edition 2008) are applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of
the Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players. In accordance with art. 24 par. 1 in combination with art. 22
lit. b) of the aforementioned Regulations, the Dispute Resolution Chamber shall
adjudicate on employment related disputes between a club and a player that have
an international dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a player and a club regarding a dispute
between the parties in connection with an employment contract.
4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations on the Status and Transfer of Players should be applicable to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the 2008 edition of the Regulations on the Status and
Transfer of Players and, on the other hand, to the fact that the employment
contract at the basis of the present dispute had been concluded for the duration
of 1 March 2008 until 31 October 2008 and that the Claimant’s complaint had
been lodged with FIFA on 15 August 2008. In view of the foregoing, the Dispute
Resolution Chamber concluded that the 2008 edition of the FIFA Regulations on
the Status and Transfer of Players (hereinafter: the Regulations) is applicable as to
the substance of the case at hand.
5.
Entering into the substance of the matter, the Dispute Resolution Chamber
examined the documentation presented by the parties throughout the
proceedings and took note that the parties involved in the present dispute had
entered into a contractual employment relationship valid from 1 March 2008 until
31 October 2008, providing for a monthly salary of USD 5,000 (cf. art. 7 par. 2 of
the contract).
6.
In continuation, the Chamber took note that it is uncontested by the Respondent
that the contractual relationship between the parties to the present dispute had
been terminated on 3 August 2008, at the moment when the Respondent had
submitted its termination letter to the Claimant.
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7.
In this respect, the Chamber observed that the Claimant claimed from the
Respondent allegedly outstanding remuneration in the amount of USD 5,000 and
compensation for breach of contract in the amount of USD 17,550, i.e. altogether
the amount of USD 22,550.
8.
In this regard, the Chamber took due note that, on the one hand, the Claimant
argued that the Respondent had unilaterally terminated the contractual
relationship without just cause and, on the other hand, the Respondent was of the
opinion that the relevant employment contract had been terminated with just
cause, in particular, due to the fact that the Claimant, during a training camp of
the team, led a woman to his private room and that this behaviour was not in
compliance with the obligations stipulated in the contract and the General Terms
and Conditions, referred to by the Respondent as “Y Club Contractual Athletes
Management Rules”, and that this behaviour of the Claimant, according to the
Respondent, harmed its reputation and “led bad infection of club daily
management especial to the young players who […] were severely influenced by
G”.
9.
Equally, the Chamber also took note that the Respondent holds that if it signs a
contract with a foreign player, it always gives him a copy of the “Y Club
Contractual Athletes Management Rules”, both in English and in C, and that it
proceeded the same way when concluding the employment contract with the
Claimant.
10.
In view of the above, the Chamber went on to deliberate as to whether the
Claimant’s leading a woman into his private room during the training camp of his
team can be considered as a just cause for the Respondent to prematurely
terminate the employment relationship.
11.
As a preliminary remark, concerning the Respondent’s allegation according to
which it had provided the player with a copy of the “Y Club Contractual Athletes
Management Rules”, the Chamber was eager to point out that, in accordance
with 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 Chamber
acknowledged that, in accordance with the documentation on file, the
Respondent did not provide any documentary evidence in support of its abovestated allegation, i.e. proof giving evidence that it indeed provided the Claimant
with the said “Y Club Contractual Athletes Management Rules”. As a
consequence, the chamber decided that this allegation of the Respondent had to
be rejected, since no evidence was provided by the Respondent in order to prove
this allegation.
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12.
Furthermore, and reverting to the question as to whether the Respondent had just
cause to terminate the contract it had concluded with the Claimant, the Chamber
pointed out that a player’s one-time bringing a woman into his private room
when being in a training camp with his team, could not constitute, per se, a valid
reason for the termination of a labour relationship. In particular, the Chamber
emphasised that, in connection with infringements of disciplinary standards such
as the one in the matter at hand, the party concerned should only have the right
to terminate the contractual relationship as ultima ratio, i.e. in case of repeated
incidents of such kind. Under such circumstances, a player committing such
disciplinary infractions would also have to be warned beforehand of the eventual
consequences of his actions if they were to be repeated.
13.
Equally, and with regard to the concrete circumstances of the present case, the
Chamber, on a side note, was eager to emphasise that the Claimant, by being
suspended from participating in the Respondent’s first team’s training and
matches, had already been sanctioned for not duly complying with his contractual
obligations and that, following the general legal principle ne bis in idem, in
accordance with which no individual shall twice be sanctioned for the same cause
of action, he could not, on a later stage, i.e. in August 2008, be sanctioned a
second time by the Respondent by being laid off.
14.
As a consequence, taking into consideration that the arguments invoked by the
Respondent cannot be accepted as a just cause to terminate an employment
contract, the Chamber concluded that the contractual relationship between the
Claimant and the Respondent must be considered as unilaterally terminated by
the Respondent without just cause.
15.
In view of the above, the Chamber decided that the Respondent is liable to pay all
outstanding monies due under the relevant employment contract until the date
on which the labour relationship is considered as terminated, i.e. until the end of
July 2008.
16.
As a result, the Chamber concluded that the Claimant was entitled to receive from
the Respondent the salary for the month of July 2008 in the amount of USD 5,000.
17.
Moreover, the Chamber established that the Respondent, in accordance with art.
17 par. 1 of the Regulations, is also liable to pay compensation for the termination
of the contract without just cause.
18.
In this regard, and taking into consideration the rest value of the relevant
employment contract as well as the fact that, uncontestedly, the Respondent
terminated the contract on the beginning of August 2008, i.e. the Claimant had
served five months of his eight and a half-months contract, the Chamber
established that it was adequate to award the Claimant compensation for breach
of contract in the amount of USD 17,500.
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19.
In conclusion, the Dispute Resolution Chamber decided that the Respondent must
pay to the Claimant outstanding remuneration in the amount of USD 5,000 and
compensation for breach of contract in the amount of USD 17,500, i.e. the total
amount of USD 22,500 and that, therefore, the Claimant’s claim is partially
accepted. In this respect, the Chamber determined that any further claims of the
Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, G, is partially accepted.
2.
The Respondent, Y, has to pay the amount of USD 22,500 to the Claimant, G,
within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant, G, are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
5.
The Claimant, G, is directed to inform the Respondent, Y, 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.
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Note relating to the motivated decision (legal remedy):
According to article 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
On behalf of the
Dispute Resolution Chamber
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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