Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 March 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
M,
as Claimant
against the club,
S,
as Respondent
regarding an employment-related dispute
between the parties.
I.
Facts of the case
1.
On 28 March 2008, the player M (hereinafter referred to as player or Claimant) and
the club S (hereinafter referred to as club or Respondent) signed an employment
contract valid as from 28 March 2008 until 30 June 2009.
2.
The employment contract stipulates in its article 2 par. 1 that “On the ground of the
player’s performance on the pitch for 2 months between April and May 2008 of the
contract period, the club has an option whether to decide on the remaining
contract period on June 2008.”
3.
The same article mentions that “If the contract is terminated on June 2008, the two
parties mutually agree that the player is entitled to a free agent and the club shall
no longer have a monetary obligation to the Player except for the Player’s monthly
salary of the noticed period of June 2008.”
4.
Furthermore, in its article 2 par. 2, the employment contract stipulates that “with
regard to the renewal of the contract, the two parties have a separate negotiation
session on December 2008.”
5.
In its article 15, the employment contract stipulates that “the club shall be entitled
to terminate the employment of the player by one week’s written notice to the
player” if the player does not comply with the contractual terms, including article 6
related to the player’s duties.
6.
In its art. 16, the employment contract stipulates that “If the player shall terminate
the contract with the Club during the contract term, the contract shall be cancelled
immediately on the condition that the Player should pay USD 600,000 (six hundred
thousand US dollars) to the Club without any conditions, except in the case of a
transfer under the conditions as stipulated in Article 17.”
7.
The monthly salary to be paid by the club to the player is USD 35,000 net, payable
on the 25th day of each month.
8.
Additionally, art. 3.1.2 of the employment contract mentions that USD 100,000 net
would be paid to the player as a “lump sum salary” provided that the contract
“takes effect on June 2008”.
9.
Furthermore, it is contractually agreed that the player would receive match
premiums in the amount of USD 5,000 if he plays more than 60 minutes and USD
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3,000 in case he plays less than 60 minutes, also payable on the 25 th day of the
relevant month.
10.
The employment contract further stipulates that “a winning bonus shall be paid on
the conditions of the yearly winning bonus system separately stipulated by the club,
which is equally adopted to all the players of the club.” In case the team wins
trophies, a premium would be paid to the players, the amounts of which being
decided by the club’s board of directors.
11.
Finally, according to article 4 of the employment contract, the player would be
provided with a house, a car and flight tickets for his family and himself.
12.
On 27 May 2008, the club sent a letter to the player informing him that his skills
evaluation during the probation period between April and May 2008 in accordance
with the employment contract had led it to terminate the contract with immediate
effect. Furthermore, the letter mentions that the player is free to find another club
and that his salary corresponding to the month of June 2008 will be paid on 25 June
2008, as per the employment contract.
13.
After having put the club in default on 23 June 2008, on 3 July 2008, the player
lodged a claim in front of FIFA since he considers, firstly, that the termination of the
contract is based on a potestative and thus non acceptable clause. Additionally,
since the player always complied with his contractual obligations, the termination
of the contract is not justified by any just cause.
14.
Consequently, the player requests to be awarded payment of the total amount of
USD 605,000 as follows :
USD 35,000, corresponding to his salary for the month of June 2008;
USD 100,000 corresponding to the contractual “sign-on amount” in accordance
with art. 3.1.2 of the employment contract;
USD 420,000 corresponding to his salaries as from July 2008 until June 2009;
USD 50,000 ex aequo et bono as a compensation for the fringe benefits and
different contractual premiums.
15.
Referring to art. 16 of the employment contract (cf. I./6. above), the player considers
the claimed amount as justified.
16.
The club replied that the contract termination is justified since the player breached
various provisions of the employment contract, in particular those related to the
player’s duties (art. 6 of the employment contract):
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Returning two days late from the N to organise his moving to K;
Refusing to follow the instructions given by the club’s coach and to train with the
reserve team, i.e. breaching art. 6.1.2 of the employment contract;
Behaving contemptuously, not being in harmony with the team, not showing
motivation despite the attempt made by the club to have him more committed
with the team, i.e. breaching art. 6.1.5 of the employment contract.
17.
The club also asserts that, on 9 May 2008, in the light of the player’s conduct the
club’s director orally notified the player that the club had decided to terminate the
contract and that the player could either go back to the N or train with the reserve
team until the end of the first two months’ period.
18.
The club points out that during a meeting that took place on 23 May 2008, the
club’s director asked the player to accept the contract termination. The player’s
manager and the player would have replied that on the basis of art. 2 par.1 of the
employment contract, the contract can only be terminated by unilateral notification
of the club without the consent of the player. The player’s manager then requested
the issuance of a document related to the unilateral contract termination until 27
May 2008.
19.
The club mentions that the player left the country on 27 May 2008, without notice
or approval and before having been provided with the requested document, which
is a serious cause for the contract termination on the basis of art. 15.1.4 of the
employment contract.
20.
Given the player’s unacceptable behaviour, the club asserts that it had just cause to
terminate the employment contract and underlines that the player merely bases his
claim for breach of contract without just cause on the club’s letter of termination.
21.
As the player did not pay some personal costs amounting to USD 2,000, the club had
so far not paid him his salary for June 2008.
22.
The club considers that the player accepted the terms of the contract, including the
art. 2 par. 1 and the unilateral termination it permitted. Additionally, the club
asserts that the player insisted on benefitting from special provisions which were
inserted in the contract at his request. The club mentions that, consequently, the
player did not refuse the art 2. par. 1 but, on the contrary, duly took it into account.
23.
Given these elements, the club maintains that it is wrong to consider art. 2. par.1 of
the employment contract as invalid since the contract, as a whole, is balanced and
therefore valid.
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24.
In addition, the club presents a detailed legal analysis of the validity of the relevant
clause 2 par. 1 also in light of the circumstances of the matter at stake and refers to
a decision passed by the Dispute Resolution Chamber (DRC) on 11 March 2005.
25.
The club concludes by mentioning the fact that in the event that the DRC considers
the club to have breached the contract, the player’s financial claims are to be
rejected except for the payment of the June salary minus USD 2,000 related to
personal expenses. Indeed, the club considers that the USD 100,000 signing-on
amount is not due since the contract was terminated before June 2008.
Additionally, since a contractual clause (art. 2.2 of the employment contract)
stipulates that a salary renegotiation was to intervene in December 2008, it is
impossible to conclude that the same salary would have been confirmed and that,
as a consequence, only the confirmed salary until December 2008 is under
discussion. Furthermore, the player was free to sign any new employment contract
when the sporting season was starting in many countries.
26.
In his replica, the player maintains that the probation or option clause set out in art.
2 par. 1 of the employment contract is illegal as it is potestative and offers the
capacity to unilaterally terminate the contract without valid or objective reasons,
which is not in line with the rulings of the Dispute Resolution Chamber and the
Court of Arbitration for Sport and the Regulations on the Status and Transfer of
Players.
27.
The player also rejects the club’s position stating that art. 2 par. 1 is valid under K
law, since the employment contract stipulates that it shall be governed in
accordance with FIFA rules.
28.
The player denies that the decision passed by the DRC on 11 March 2005 would
apply to the present matter. He further rejects the club’s legal analysis on art. 2 par.
1 of the employment contract.
29.
The player also highlights that the club’s position contains new reproaches towards
him aiming to justify its decision afterwards by associating non-sporting reasons to
the sole sportive aspect. In this respect, the player points out that none of the
reproaches against him are referred to in the letter of termination of the club.
30.
Furthermore, the player explains that the club tried on several occasions to
negotiate an amicable termination, because it knew that the probation clause was
illegal.
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31.
Additionally, the player replies to the alleged breach of contract by leaving the club
without having properly informed the latter by stating that the club had already
been negotiating the contract termination for days before he left.
32.
In its duplica, the club highlights that according to the player, the club’s arguments
are invalid as they were not included in its notification of the termination of the
employment contract. The club asserts that it duly informed the player of the
various reproaches it had towards him, via, inter alia, the letter dated 6 May 2008
related to the consequences of his refusal to warm up to play and to train with the
reserve team.
33.
The club deems that the player’s lack of professionalism is demonstrated with the
documentation presented by the club.
34.
In this respect, the club also refers to media articles and asserts that the player had
planned his course of action to get back to X when the transfer window would
open again (summer 2008).
35.
In reply to FIFA’s request for information, the player asserts that after having left K,
he was registered as an amateur player for the club W during the season 2008-09
and has, since then, not been registered with any 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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 3 July 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. art. 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.
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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
2009), and considering that the present claim was lodged on 3 July 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 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 28 March 2008, valid as from the same day until 30 June
2009. The Claimant, on the one hand, maintains that the Respondent breached the
said contract by putting an end to the contractual relation via a letter dated 27 May
2008 on the basis of a unilateral option clause (art. 2 par. 1 of the employment
contract) that is, according to the Claimant, null and void. The Respondent, on the
other hand, acknowledges that it terminated the employment contract and
maintains that it had just cause to do so on the basis of the player’s unacceptable
conduct. Moreover, the Respondent asserts that art. 2 par. 1 of the employment
contract was mutually agreed upon by both parties and is fully valid under K law as
well as according to DRC jurisprudence and given the fact that the employment
contract, as a whole, is balanced. The Respondent further holds that the contents of
the termination letter dated 27 May 2008 do not explicitly mention all the specific
circumstances that led the Respondent to terminate the employment contract but
that it has been duly shown that the Claimant had repeatedly breached his
obligations towards the Respondent over the two months period of time.
5.
In this context, the Chamber firstly focussed its attention on the said art. 2 par. 1 of
the employment contract, which reads as follows: “On the ground of the Player’s
performance on the pitch for 2 months between April and May 2008 of the contract
period, the Club has an option whether to decide on the remaining contract period
on June 2008. If the contract is terminated on June 2008, the two parties mutually
agree that the Player is entitled to a free agent and the Club shall no longer have a
monetary obligation to the Player except for the Player’s monthly salary of the
noticed period of June 2008”.
6.
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, the assessment
of the Claimant’s performance on the pitch is left fully to the discretion of the
Respondent. In the light of such potestative character of the pertinent contractual
clause, and in accordance with the Chamber’s constant jurisprudence, the members
of the Chamber agreed that art. 2 par. 1 of the employment contract is not
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acceptable and cannot be validly invoked as a legal basis for a unilateral
termination of the employment contract.
7.
Furthermore, as regards the concept of probation periods, the Chamber deemed it
fit to point out that, as a general rule, probation period clauses are not acceptable
since they do not respect the spirit of the Regulations.
8.
Additionally, the Chamber deemed it appropriate to outline that the facts and the
ratio decidendi at the origin of the DRC decision dated 11 March 2005, which the
Respondent is referring to, are obviously different from the circumstances
surrounding the matter at hand. Indeed, as opposed to the facts of the case
presently at stake, in the matter decided upon by the DRC on 11 March 2005 the
player had accepted the termination of the employment contract at the end of the
probation period by having signed a payment receipt “end of service” and the
notice of cancellation of his contract.
9.
Consequently, the Chamber rejected the Respondent’s argument pertaining to the
validity of art. 2 par. 1 of the employment contract.
10.
After having considered that the termination of the employment contract on the
basis of art. 2 par. 1 of the said contract was invalid, the Chamber analysed the
Respondent’s assertion that it terminated the employment contract as a result of
the player’s behaviour and his attitude towards the club’s staff members and team
mates.
11.
In this regard, the members noted that, in reply to the claim, the Respondent
asserted that it decided to terminate the employment contract on the basis of the
player’s continuous misconduct (cf. points I./16. and I./17. above). The Chamber took
due note of the documents that had been presented by the Respondent in this
respect. The Chamber also took into account that the termination letter dated 27
May 2008 does not contain any reference to the said misbehaviour but solely
indicates that the decision to terminate the employment contract is based on the
terms of the said contract, in particular art. 2 par. 1, in combination with the
player’s skills evaluation. What is more, the members of the Chamber noticed that
the Respondent’s assertions related to the player’s misconduct were put forward
during the investigation phase in the matter at hand, i.e. after the player had
lodged his claim against the club in front of FIFA.
12.
With regard to the Respondent’s argument relating to the player’s misconduct, the
Chamber deemed that the behaviour of the player could possibly have been the
object of disciplinary measures. In this respect, the members of the Chamber wished
to emphasize that terminating a contract shall remain the last option only in case of
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a serious breach of contract. The members of the Chamber agreed that, taking into
account the Chamber’s jurisprudence, the reported player’s misconduct does not
constitute a just cause which could justify the unilateral termination of the contract
by the club. In this context, and reverting to the contents of the letter of
termination dated 27 May 2008, the Chamber also wished to outline that in
accordance with the Chamber’s constant jurisprudence, a player’s (poor)
performance does not constitute a valid reason to unilaterally terminate an
employment contract.
13.
On account of the aforementioned reasons, the Chamber came to the conclusion
that the arguments presented by the Respondent in this regard were to be rejected.
14.
Taking into consideration all of the above, the Chamber decided that the
Respondent had unilaterally terminated the employment contract without just
cause on 27 May 2008.
15.
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, if any, on the basis of the
relevant employment contract.
16.
The Chamber then reverted to the Claimant’s financial claim, which includes
outstanding remuneration corresponding to the month of June 2008 in the amount
of USD 35,000 and a lump sum payment in the amount of USD 100,000.
17.
First and foremost, after having analysed the contents of art. 3.1.2 of the
employment contract, from which it can be noted that the Respondent shall pay to
the Claimant USD 100,000 net as a “lump sum salary (sign on amount) by the 30th
June 2008 on the condition that the contract takes effect on June 2008.”, the
Chamber came to the conclusion that, as the contract was terminated as of 27 May
2008, the aforesaid amount shall not be considered as an outstanding part of the
Claimant’s remuneration.
18.
With regard to the USD 35,000 corresponding to the salary of June, the Chamber
pointed out that the Respondent acknowledges that it did not pay the said amount
to the Claimant due to the fact that the amount of USD 2,000 corresponding to the
Claimant’s personal expenses remained outstanding. The Respondent expressed its
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willingness in this regard to pay to the Claimant the amount of USD 35,000 minus
the said USD 2,000.
19.
However, the Chamber noted that no evidence was put forward by the Respondent
in this respect, consequently, the Respondent failed to comply with art. 12 par. 3 of
the Rules in accordance with which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
20.
Consequently, the Chamber decided that the Respondent is liable to pay to the
Claimant the outstanding amount of USD 35,000 related to the Claimant’s salary of
June 2008.
21.
In continuation, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake.
22.
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, the fees and expenses paid or incurred by the former club,
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 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. Art. 16 of the
employment contract merely provides for compensation payable by the Claimant to
the Respondent in the event of a termination of the employment contract by the
Claimant. In this respect, the members of the Chamber held that the said art. 16
cannot be applied to the matter at hand, as the relevant provision does not provide
for the situation in the specific matter at hand, i.e. compensation payable if the
Respondent acts in breach of contract.
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
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compensation payable. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body.
25.
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 up and
until December 2008, as the existing contractual terms would be subject to a
negotiation round between the contractual parties in December 2008 (cf. art. 2.2 of
the employment contract).
26.
Additionally, the Chamber took into account the time remaining on the
employment contract, as well as the professional situation of the Claimant after the
early termination of the employment contract.
27.
In fact, the Claimant appears to not have signed any other contract as a professional
football player for any other club after the termination of his employment contract
by the Respondent.
28.
The Claimant, for his part, claims the total amount of USD 605,000, which amount,
in fact, reflects the theoretical remaining value of the pertinent employment
contract as of the moment on which the breach of contract occurred, outstanding
salaries, one signing-on fee, and compensation for contractual benefits and various
premiums.
29.
Due consideration was also made by the Chamber to the Claimant’s behaviour
during the execution of the contract. In this regard, it clearly appears that the
Claimant did not always fully comply with his obligations deriving from the
employment contract, such behaviour, so the Chamber, has to be taken into account
while assessing the compensation to be awarded to the Claimant.
30.
In this regard, the Chamber duly noted that the Respondent had referred to various
reproaches related to the player’s behaviour, such as, inter alia, his late return from
the Netherlands, his indiscipline or personal misconduct, which apparently had a
negative impact on the club’s evaluation of the player’s performances during the
first two months in which the player rendered his services to the club.
31.
In particular, the Chamber analysed the contents of the “Evaluation Report” as well
as well as the “Letter of Notification” dated 22 May 2008 the club addressed to the
player with particular regard to his refusal to follow the coach’s instructions.
32.
In continuation, after having analysed the various amounts the Claimant was to
receive on the basis of the employment contract and taking into account the
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circumstances surrounding the specific matter at hand, the members reached the
conclusion that the amount of USD 150,000 would appear fair and appropriate to
compensate the termination of the employment contract without just cause by the
Respondent.
33.
In light of the above, the Dispute Resolution Chamber decided that the Respondent
has to pay to the Claimant the amount of USD 150,000 as compensation for breach
of contract without just cause.
34.
The Chamber concluded its deliberations in the present matter by establishing that
any further claims of the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, M, is partially accepted.
2.
The Respondent, S, has to pay to the Claimant the amount of USD 185,000 within 30
days as from the date of notification of this decision.
3.
In the event that the aforementioned amount due to the Claimant is not paid by
the Respondent within the above-mentioned time limit, interest at the rate of 5%
per year will apply as of expiry of the stipulated time limit and the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for its
consideration and a formal decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
bank 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. 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
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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
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