Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 28 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player Z from country N
as Claimant/Counter-Respondent
against the club,
Club E from country C
as Respondent/Counter-Claimant
and the club,
Club B from country N
as Intervening Party
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 9 July 2010, player Z from country N (hereinafter: the player or the
Claimant/Counter-Respondent), and the club E from country C (hereinafter: the club or
the Respondent/Counter-Claimant), signed an employment contract (hereinafter: the
contract) as well as an appendix to it, both valid as from 1 July 2010 until 31 May 2012.
2.
According to the employment contract and the appendix, the club undertakes to pay
the player, inter alia, the following net amounts:
- EUR 140,000, for the season 2010/2011, payable in ten equal monthly instalments
of EUR 14,000, as from 1 September 2010 until 1 June 2011;
- EUR 140,000, for the season 2011/2012, payable in ten equal monthly instalments
of EUR 14,000, as from 1 September 2011 until 1 June 2012;
- EUR 35,000 as sign-on fee;
- EUR 35,000 payable on 30 June 2011;
- EUR 1,250 as monthly rent expenses, payable for 24 months;
- bonuses in the amount of EUR 100,000, if the club wins the Championship; EUR
50,000, if the club wins the Cup and participates in the qualification rounds of
UEFA; EUR 30,000, if the club participates in the qualification of the UEFA Europa
League; EUR 150,000, if the club participates in the Group Stage of the UEFA
Champions League; EUR 100,000, if the club participates in the Group Stage of the
UEFA Europa League; EUR 500 for each point acquired in the regular season of the
Championship, with the participation of the player.
3.
Article 5 of the contract and art. 6 of the appendix stipulate that “The employee shall
attend all regular training sessions and matches of the first team. He will obey all
reasonable football related instructions of the trainer working for the first team”.
4.
In addition, art. 10 of the contract and art. 11 of the appendix establish that “the
employee shall at all times be subject to any regulations which can objectively be
defined as being reasonable issued from time to time by the employer and relating to
the nature of his duties, his obligations in the performance of his duties and his
obligations towards the employer and generally, relating to his services”.
5.
Moreover, art. 11 par. a) and b) of the contract and art. 12 par. a) and b) of the
appendix, establish that “The employer shall have the right to terminate the present
agreement without prior written notice to the employee or payment in lieu or notice
for cases under d) and c) for cases under a) and b) only after notice is sent to employee:
a) commit any serious persistent breach or non-observance of any of the provisions
herein contained; b) be guilty of any grave misconduct of wilful neglect in the discharge
of his duties here under and/or fails to or refuses to follow the directions of his
coach/trainer and/or the directions of the team’s board of directors which can
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objectively defined as being reasonable regarding team rules pursuant to the internal
regulations of the team”.
6.
Finally, according to art. 12 of the contract and art. 13 of the appendix, “this agreement
will be governed by the laws of the country C and FIFA Regulations or/and football
association F Regulation. Concerning this agreement FIFA regulations will be applicable
and the dispute resolution chamber of FIFA will be competent court”.
7.
On 20 April 2011, based on art. 11 par. a) and b) of the contract and art. 12 par. a) and
b) of the appendix, the club unilaterally terminated the contract with the player with
immediate effect, by means of a letter in which it also imposed on the player a fine in
the amount of EUR 3,000 for his unprofessional behaviour. According to the club, by
allegedly refusing to sign important documents for the club’s committee, by acting
unprofessionally towards the club’s coach, by drinking and smoking regularly, and by
showing unsatisfactory performance on the field, the player breached art. 5 and 10 of
the contract, as well as art. 6 and 11 of the appendix.
8.
On 6 May 2011, the player lodged a claim in front of FIFA against the club for breach of
contract without just cause and requested that the club should proceed with the
payment of the total amount of EUR 263,500, made up of:
- EUR 28,000 corresponding to outstanding partial salaries for January (EUR 7,000)
and February (EUR 7,000), and to the salary of March 2011 (EUR 14,000);
- EUR 1,250 as rent expenses for March 2011;
- EUR 12,500 as bonus for points acquired in the regular season of the
Championship;
- EUR 221,750 as compensation for breach of contract, made up of EUR 168,000 of
remuneration for April 2011 until May 2012 (EUR 28,000 + EUR 140,000), EUR
35,000 payable on 30 June 2011, EUR 18,750 in rent expenses for April 2011 until
May 2012 (EUR 3,750 + EUR 15,000).
9.
In his arguments, the player rejects the penalty imposed on him and states that, even
though he had been fulfilling all his contractual and sportive obligations towards the
club, the latter failed to comply with its financial obligations towards him, namely part
of his salaries for January and February 2011, as well as his salary and rent expenses for
March 2011 have not been paid by the club.
10.
The player stressed that, on 22 March 2011, the club requested him to sign a document,
by means of which he would confirm that the club had fulfilled all its financial
obligations towards him as of December 2010, to which he refused. As a consequence,
the club unilaterally terminated the contract on 20 April 2011.
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11.
In its response, the club disputes the jurisdiction of FIFA and requests that the present
proceedings should be ceased, since the matter at hand is allegedly pending in front of
the District Court of the city L of country C. In this regard, the club provided a “writ of
summons” dated 15 June 2011, allegedly sent to the player, and an undated
“endorsement claim”.
12.
According to the club, the right to lodge a claim before an ordinary court in
employment-related disputes – established in art. 22 lit. b) of the Regulations on the
Status and Transfer of Players – is a fundamental right and, hence, cannot be opened to
the disposition of contractual parties. Therefore, the club deems that according to the
first sentence of art. 12 of the contract the parties could bring a possible dispute to
FIFA, but only if the dispute had not been adjudicated by an ordinary state court.
13.
Furthermore, the club referred to the “FIFA Manual Players’ Status and Disciplinary
Matters” which in its chapter III. par. 2 indicates that “Basically, every player and club
can lodge a claim before an ordinary court in disputes relating to employment rights. If
a party lodges a claim before an ordinary court, FIFA´s legal bodies will cease to deal
with the case”.
14.
Moreover, the club maintains that whether the lawsuit before the ordinary state court
had already been pending when the player submitted the claim to FIFA or vice versa, is
irrelevant for the question of competence of FIFA’s Dispute Resolution Chamber
(hereinafter: DRC), as the principle of litispendens may only apply between deciding
bodies that are on the same level, and the DRC cannot be considered as a “true”
arbitration tribunal.
15.
As to the substance of the case, the club maintains that the player’s behaviour on and
off the field was unsatisfactory, since he allegedly abandoned training sessions, refused
to follow instructions, insulted coaches and had an unhealthy lifestyle. In this regard,
the club enclosed to its response an undated statement of an employee of a night club
in the city L of country C, on the player’s lifestyle. For the aforementioned reasons, the
club imposed three fines on the player, in the total amount of EUR 9,000, i.e. EUR 3,000
each, on 11 January 2011, 11 February 2011 and 20 April 2011.
16.
Finally, also on 20 April 2011, as per the player’s behaviour remaining unchanged, in
spite of previous warnings regarding the risks of his inappropriate behaviour to the
continuance of his contract, the club eventually decided to terminate its contractual
relation with the player, based on art. 11 of the contract and art. 12 of the appendix. In
this regard, the club encloses to its response copies of letters dated 11 January 2011 and
11 February 2011, communicated to the player via the club’s pin board, as well as of
statements of the club’s vice-president and its secretary, both dated 10 October 2011,
confirming, respectively, said publication and its communication to the player by phone.
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17.
Subsequently, the club lodged a counterclaim against the player, for breach of contract
without just cause, requesting compensation in the amount of EUR 400,000 from the
player and his new club, club B from country N.
18.
Notwithstanding, and in case the DRC deems the club to be responsible for the contract
termination without just cause, the club albeit provides a subsidiary response, partially
dismissing the player’s claimed compensation. According to the club, the player should
not be entitled to:
- EUR 12,500 in bonus, as he has failed to provide any substantial evidence thereof;
- EUR 3,750 in rent for the residual period of the season 2010/2011, as he left the
country C at the end of April 2011;
- EUR 35,000 as it corresponds to the second part of the sign-on fee and therefore
does not correspond to his salary. The club maintains that, in case of a premature
termination of a contract, the remaining sign-on fee instalments have to be
calculated on a pro rata temporis basis. In the present case, since the player left
after 8 months of employment and the contract is valid for a period of 2 years, he
shall be entitled to 1/3 of the total sign-on fee (EUR 70,000), i.e. 23,333. However,
the first instalment of EUR 35,000 has already been paid by the club and the
second instalment is not yet due. Therefore, EUR 11,667 (EUR 35,000 – EUR 23,333)
still have to be deducted from any compensation payable to the player.
19.
Moreover, the club also considers that the fines imposed on the player for violating his
contractual obligations with the club, i.e. EUR 9,000 in total, must also be deducted
from any possible compensation to be paid.
20.
In his replica, the player addresses the competence issue raised by the club and states
that he was unaware whether the case at hand had been effectively submitted in front
of a court of country C. Notwithstanding the foregoing, the player points out that, as
per the second sentence of art. 12 of the contract, the only competent body to decide in
the dispute at hand is FIFA’s DRC.
21.
As to the substance of the case, the player first of all denies all the club’s accusations
and maintains that prior to the termination letter and fine of 20 April 2011, the club
failed to provide him with any kind of warning or notification. The player claims to
have never been notified of the alleged letters of 11 January 2011 and 11 February
2011.
22.
Moreover, the accusations brought forward by the club are not substantiated by any
evidence as the statements of the night club employee, the club’s vice-president and the
club’s secretary are either written after the date of the termination, bear no date at all
or are written by people from or connected with the club.
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23.
Nevertheless, the player accepts the club’s position regarding the deduction of the
housing costs, but insists that no other deduction should be accepted.
24.
In its final position, the club insists on the club’s right to seek redress before the court of
country C.
25.
Furthermore, the club also refers to art. 12 par. 1 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules), and claims that “evidence may be made by witness testimony”. In this
respect, the club reflects on the allegations made by the player and points out that
witness statements are logically made at a date after the incident, as they describe facts
that took place in the past.
26.
Moreover, the club also contests the player’s allegations regarding the amounts paid to
the latter prior to the contract termination. In this respect the club maintains that the
payment receipts enclosed in its submission prove that the club paid the player the total
amount of EUR 35,000, between January 2011 and March 2011: EUR 7,000 on 21
January 2011, EUR 7,000 on 10 February 2011, EUR 7,000 on 4 March 2011 and EUR
14,000 on 31 March 2011. Thus, the player is also not entitled to claim compensation
from the club.
27.
In his final position, the player insists on FIFA’s jurisdiction on the present matter and
maintains his previous allegations regarding the substance of the case.
28.
In addition, the player states that, without any previous warning, the club started
paying him only the half of his monthly salary. The player does not contest having
signed the payment receipts enclosed to the club’s response, in the language of country
C, but points out that they refer to late payments. According to the player, since the
beginning of the contract, payments have been made by the club in an untimely
manner.
29.
Moreover, the player rejects the club’s accusations regarding his alleged inappropriate
behaviour towards the club’s coach and points out having been fielded by the latter in
many occasions, which confirms their normal relationship.
30.
Finally, the player states having signed a new employment contract with the club B
from the country N as of 1 July 2011 until 30 June 2013, according to which he is
entitled to a gross monthly salary of EUR 15,000.
31.
Having been invited by FIFA to submit its comments, the intervening party, the club B
from the country N, stated having committed no inducement to breach of contract,
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since already in May 2011 it was informed by the player’s agent that the player was free
of contract.
32.
In addition, by the time of the player’s engagement, the club was informed by the
player’s agent and the player that the latter had not breached the contract with the city
L from country C, which was later verified by the club B from country N. Therefore, the
club deems that no breach has been committed by the player and that art. 17 of the
Regulations is not applicable.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to deal
with the case at hand. In this respect, the Chamber referred to art. 21 par. 1 and 2 of
the Procedural Rules (edition 2008). The present dispute was submitted to FIFA on 6
May 2011. Consequently, the 2008 edition of the Procedural Rules is applicable to the
matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural Rules).
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the
Procedural Rules states that the Chamber shall examine its jurisdiction in the light of
art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2010). In
accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the
aforementioned Regulations, the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from country N and a club
from country C.
3.
However, the Chamber acknowledged that the Respondent/Counter-Claimant contested
the competence of FIFA’s deciding bodies invoking litispendens on the basis that the
Respondent/Counter-Claimant had lodged a claim against the Claimant/CounterRespondent in front of the district court of the city L in country C in Cyprus on a nonspecified date. In this regard, the Respondent/Counter-Claimant referred to art. 22 lit. b)
of the Regulations, to art. 2 of chapter III of the FIFA Manual Players’ Status and
Disciplinary Matters and to the first sentence of art. 12 of the employment contract,
which reads as follows: “This Agreement will be governed by the laws of the Republic
of country C and FIFA Regulations or/and Football Association F of the country C
Regulation”, in accordance with which, according to the Respondent/Counter-Claimant,
the parties first and foremost wished to refer any dispute to ordinary courts of the
country C.
4.
The Respondent/Counter-Claimant deems that the right of a party to lodge a claim
before an ordinary court in employment-related disputes is a fundamental right and,
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therefore, cannot be opened to the disposition of contractual parties. In this context,
the Respondent/Counter-Claimant deems that art. 12 of the contract allows the parties
to bring a possible dispute to FIFA, but only if the dispute had not been adjudicated by
an ordinary state court. In addition, the Respondent/Counter-Claimant considers that it
is irrelevant whether the lawsuit before the ordinary state court had already been
pending when the player submitted the claim to FIFA or vice versa, for the principle of
litispendens may only apply between deciding bodies of the same level, and the DRC
cannot be considered as a legitimate arbitration tribunal.
5.
The Claimant/Counter-Respondent, in turn, rejected such position and insisted that the
Chamber should be competent to deal with the present matter, emphasizing that he
was never notified of any legal proceedings allegedly lodged against him by the
Respondent/Counter-Claimant in front an ordinary court in country C. In addition, the
Claimant/Counter-Respondent states that, as per the second sentence of art. 12 of the
contract – “Concerning this agreement FIFA Regulations will be applicable and the
dispute resolution chamber of FIFA will be competent court” –, the competent body to
decide in the dispute at hand would be the Dispute Resolution Chamber of FIFA.
6.
Prior to proceeding to a closer examination of the arguments and the documentation
presented by the parties in support of their position regarding the competence issue,
the Chamber deemed it essential to make some preliminary remarks.
7.
Indeed, the members of the Chamber wished to highlight that if a club or a player
decides to participate in organised football, they accept certain particularities of such
system, including the circumstance that disputes should, in principle, be dealt with by
means of arbitration. In this respect, FIFA puts a lot of effort in providing for a
structured and elaborate dispute resolution system, which has proven to be efficient
and working well. Recourse to arbitration is considered a basic principle despite the
exception contained in art. 22 of the Regulations, which allows players and clubs to seek
redress before a civil court. It is in the light of this context that any reference of an
employment-related dispute by a player or a club to ordinary courts should be
considered.
8.
Having said this, in continuation, the Chamber began to examine the entire
documentation at its disposal as well as the statements made by the parties involved in
the present dispute with regard to the competence issue.
9.
First of all, the members of the Chamber took note of the fact that the
Claimant/Counter-Respondent states to have been unaware as to whether a claim had
been effectively submitted in front of a court of country C. In this regard, the Chamber
also noticed that the Respondent/Counter-Claimant failed to provide any evidence that
the Claimant/Counter-Respondent was duly informed of any pending proceedings in
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front of the Cypriot court, since the “writ of summons” and the “endorsement claim”,
which were presented by the Respondent/Counter-Claimant, are not conclusive as to the
actual notification of the Claimant/Counter-Respondent.
10.
In addition, the Chamber paid due consideration to the clear wording of the second
sentence of art. 12 of the contract, according to which “Concerning this agreement FIFA
regulations will be applicable and the dispute resolution chamber of FIFA will be
competent court”. Therefore, the Chamber deemed that the employment contract at
the basis of the dispute contained a clear choice of jurisdiction in favour of the FIFA
DRC.
11.
Moreover, the DRC took note of the argument of the Respondent/Counter-Claimant,
according to which the Chamber cannot be considered as a “true” arbitration tribunal.
In this respect, it pointed out that the DRC and its role and functioning should be
considered within the entire system, which includes the Court of Arbitration for Sport
(hereinafter: CAS) as a body of appeal, which has been recognized by the Swiss Federal
Tribunal??????? as an arbitration body.
12.
Finally, the Chamber wished to highlight that, in reference to the Respondent /
Counter-Claimant’s interpretation of the “FIFA Manual Players’ Status and Disciplinary
Matters”, FIFA Manuals do not constitute Regulations. The manual in question contains
simplified and general information and has no binding effect on the deciding
authorities, which have to address matters on a case by case basis.
13.
On account of the above, the Chamber rejected the Respondent/Counter-Claimant’s
objection and declared itself competent to decide on the matter at hand between a
player from country N and a club from country C, in accordance with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players and with art. 12 of the contract.
14.
Subsequently, the Chamber analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, the Chamber confirmed
that, in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2010) and
considering that the present matter was submitted to FIFA on 6 May 2011, the 2010
edition of said Regulations is applicable to the present matter as to the substance.
15.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, the
Chamber started to acknowledge the facts of the case as well as the documents
contained in the file.
16.
In this respect, the DRC acknowledged that it was undisputed by the parties that, on 9
July 2010, the Claimant/Counter-Respondent and the Respondent/Counter-Claimant
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signed an employment contract as well as an appendix, both valid as from 1 July 2010
until 31 May 2012, in accordance with which the player was entitled to receive inter alia
EUR 140,000, for the season 2010/2011, payable in ten equal monthly instalments of
EUR 14,000, as from 1 September 2010 until 1 June 2011; EUR 140,000, for the season
2011/2012, payable in ten equal monthly instalments of EUR 14,000, as from 1
September 2011 until 1 June 2012; EUR 35,000 as sign-on fee; EUR 35,000 payable on 30
June 2011; EUR 1,250 as monthly rent expenses, payable for 24 months; and several
bonuses.
17.
Moreover, the members of the DRC noticed that it was equally undisputed by the
parties that the aforementioned contract was unilaterally terminated by the
Respondent/Counter-Claimant on 20 April 2011.
18.
The Chamber further acknowledged that according to art. 11 par. a) and b) of the
contract and to art. 12 par. a) and b) of the appendix “The employer shall have the
right to terminate the present agreement without prior written notice to the employee
or payment in lieu or notice for cases under d) and c) [and] for cases under a) and b)
only after notice is sent to the employee: a) commit any serious persistent breach or
non-observance of any of tile provision herein contained; b) be guilty of any grave
misconduct of wilful neglect in the discharge of his duties hereunder and/or fails to or
refuses to follow the directions of his coach/trainer and/or the directions of the team’s
board of directors regarding team rules pursuant to the internal regulations of the
team”.
19.
The members of the Chamber subsequently reviewed the arguments presented by the
Claimant/Counter-Respondent, who maintained that, on 20 April 2011, the
Respondent/Counter-Claimant unilaterally terminated the employment contract
without just cause. In this respect, the Claimant emphasized that the reasons put
forward by the Respondent/Counter-Claimant in its letter of termination concerning the
player’s behaviour on and off the pitch are incorrect.
20.
Furthermore, the Claimant/Counter-Respondent maintained that the Respondent/
Counter-Claimant had failed to pay his remuneration falling due in January 2011 (EUR
7,000), February 2011 (EUR 7,000) and March 2011 (EUR 14,000), as well as his rent
expenses for March 2011 (EUR 1,250) and bonuses for points acquired in the
Championship (EUR 12,500), in spite of the fact that he had been fulfilling all his
contractual and sportive obligations towards the club. Moreover, the Claimant/CounterRespondent refused to sign a waiver presented by the Respondent/Counter-Claimant
on 22 March 2011, stating that the latter had fulfilled all its financial obligations
towards him.
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21.
In continuation, the Chamber noted that, according to the pertinent letter of
termination of 20 April 2011, the Respondent/Counter-Claimant terminated the
employment contract with immediate effect, based on the fact that the
Claimant/Counter-Respondent had allegedly breached art. 5 and 10 of the contract, as
well as art. 6 and 11 of the appendix. Moreover, said letter of termination refers to a
fine of EUR 3,000 being imposed on the Claimant/Counter-Respondent for having
refused to sign certain papers, having demonstrated an unprofessional behaviour
towards the coach, for drinking and smoking regularly and for showing unsatisfactory
performance on the field.
22.
The Chamber went on examining the reply of the Respondent/Counter-Claimant as to
the substance of the claim. In this regard, the Chamber observed that the
Respondent/Counter-Claimant held that the Claimant/Counter-Respondent’s behaviour
on and off the field was unsatisfactory, since he showed lack of discipline at work and
had an unhealthy lifestyle. The Respondent/Counter-Claimant equally states having
warned the player about his inappropriate behaviour, by means of two letters dated 11
January 2011 and 11 February 2011, which were published on the club’s pin board and
the content of which was allegedly communicated to the player by phone.
23.
Based on the aforementioned facts, the Respondent/Counter-Claimant lodged a
counterclaim against the player, for breach of contract without just cause, requesting
compensation in the amount of EUR 400,000 from the player and his new club, B from
country N. In the event that the DRC rejects the Respondent/Counter-Claimant’s
counterclaim, the latter claims that the following amounts should be deducted from the
amount due by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent:
EUR 12,500 in bonus as the Claimant/Counter-Respondent failed to provide any
substantial evidence thereof; EUR 3,750 in rent for the residual period of the season
2010/2011, since the Claimant/Counter-Respondent left country C at the end of April
2011; EUR 11,667 as reimbursement of part of the sign-on fee paid in full and in
advance to the player before the termination; and EUR 9,000 corresponding to the total
amount of fines imposed by the club on the player.
24.
Finally, the members of the DRC took note of the allegations of the intervening party, B
from country N, which rejects the accusations of inducement to breach of contract, since
already in May 2011 it was informed that the Claimant/Counter-Respondent was a free
player and that he had not breached his previous contract. Therefore, club B from the
country N deems that art. 17 of the Regulations is not applicable to the case at hand.
25.
Having established the aforementioned, the DRC deemed that the underlying issue in
this dispute, considering the claim of the player and the counterclaim of the of / from
country C club, was to determine whether the employment contract had been
unilaterally terminated with or without just cause and which party was responsible for
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the early termination of the contractual relationship in question. The Chamber also
underlined that, subsequently, if it were found that the employment contract had been
breached by the one of the parties without just cause, it would be necessary to
determine the financial and/or sporting consequences for the party that caused the
unjust breach of the relevant employment contract.
26.
Bearing in mind the aforementioned arguments presented by all parties, as well as the
wording of the contractual clauses referred to by the Respondent/Counter-Claimant in
its letter of termination of 20 April 2011, the members of the Chamber deemed it
appropriate to recall the general principle of burden of proof stipulated in art. 12 par. 3
of the Procedural Rules, according to which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
27.
In this respect, the Chamber analysed the documentation provided by the
Respondent/Counter-Claimant in support of the allegation that the Claimant/CounterRespondent would have acted in breach of art. 5 and art. 10 of the contract, and of art.
6 and art. 11 of the appendix and, in particular, that the Claimant/Counter-Respondent
had shown an unprofessional and inappropriate conduct towards the Respondent/
Counter-Claimant.
28.
In this context, the Chamber noticed that the only documentation provided by the
Respondent/Counter-Claimant in this respect was a personal statement of a nightclub
employee in the city L of country C, according to which the Claimant/CounterRespondent “between November 2010 and April 2011 […] visited many times and
continuously […] the Club staying until up to 05:00am, drinking too much (many times
he became totally drunk) and smoking”. In this regard, the Chamber was also eager to
emphasize that the information contained in a personal statement, not supported by
any additional documentation whatsoever, is of mainly subjective perception and might
be affected by diverse contextual factors; therefore, the credibility of such type of
documentation is quite limited.
29.
Moreover, the DRC pointed out that the motive presented by the Respondent/CounterClaimant for the dismissal of the Claimant/Counter-Respondent was his alleged
unhealthy lifestyle, which is rather a personal characteristic of the player than a
deliberate act of non-compliance with his professional duties, as per the employment
contract.
30.
Furthermore, the Chamber was eager to underline that the Respondent/CounterClaimant equally failed to present proof of any previous warnings addressed to or of
any disciplinary proceedings against the Claimant/Counter-Respondent. According to
the Respondent/Counter-Claimant’s statements, the warnings dated 11 January 2011
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and 11 February 2011 were communicated to the Claimant/Counter-Respondent on the
club’s pin board or by phone.
31.
In this respect, the Chamber recalled the wording of art. 11 of the contract, according to
which “The employer shall have the right to terminate the present agreement without
prior written notice to the employee or payment in lieu or notice for cases under d) and
c) [and] for cases under a) and b) only after notice is sent to the employee: a) commit
any serious persistent breach or non-observance of any of tile provision herein
contained; b) be guilty of any grave misconduct of wilful neglect in the discharge of his
duties hereunder and/or fails to or refuses to follow the directions of his coach/trainer
and/or the directions of the team’s board of directors regarding team rules pursuant to
the internal regulations of the team”.
32.
In view of the wording of the aforementioned provision, the DRC understood that the
pre-requisite of a notice sent to the employee prior to the termination implied both the
transmission of such information in an individual and personalised manner and the
possibility of establishing its actual receipt by the addressee, i.e. by means of registered
letter.
33.
In the present case, the DRC noted that the Respondent/Counter-Claimant alleges that
the written notices for termination were posted on the club’s pin board and allegedly
communicated by phone, which the Chamber did not consider to be a valid mean of
notification of a warning to an employee. Moreover, the player denies having received
any such warnings from the club prior to the termination of the contract by the club.
Bearing in mind that the club bears the burden of proof with regards to the
communication of the warnings to the Claimant/Counter-Respondent, the Chamber was
of the opinion that the Respondent/Counter-Claimant failed to do so. Consequently, the
DRC decided that it appears that the formal prerequisites of art. 11 of the contract were
not respected by the Respondent/Counter-Claimant.
34.
Regardless of the preceding consideration and referring to the allegations of the
Respondent/Counter-Claimant with respect to the conduct of the Claimant/CounterRespondent, which were not proven as stated above, the members of the Chamber
were equally eager to emphasise that only a breach or misconduct which is of a certain
severity would justify the termination of a contract without prior warning. 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 assure 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 be used as ultima ratio.
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35.
In view of the above, the Chamber was of the unanimous opinion that the
Respondent/Counter-Claimant did not submit substantial documentary evidence as to
the alleged termination of contract with just cause, nor did it provide consistent
evidence of its compliance with the prerequisites for a premature contractual
termination as established in art. 11 of the contract. Therefore, the Chamber concluded
that the Respondent/Counter-Claimant had terminated the employment contract
without just cause. As a consequence, the DRC also deemed that the counterclaim
lodged by the Respondent/Counter-Claimant against the Claimant/Counter-Respondent
and his new club, B of country N should be rejected.
36.
Prior to establishing the consequences of the breach of contract without just cause by
the Respondent/Counter-Claimant, in accordance with art. 17 par. 1 of the Regulations,
the Chamber held that it had to address the issue of any unpaid remuneration at the
moment the contracts were terminated by the Respondent/Counter-Claimant.
37.
In this regard, the Chamber noted that the Claimant/Counter-Respondent claims that
the Respondent/Counter-Claimant has failed to pay his salaries as from January until
March 2011, in the total amount of EUR 28,000 (i.e. EUR 7,000 for January, EUR 7,000
for February and EUR 14,000 for March), EUR 1,250 as rent expenses for March 2011 and
EUR 12,500 as bonus for points acquired in the regular season of the Championship.
38.
In continuation, the Chamber took into account that the Respondent/Counter-Claimant,
in turn, maintained that the total amount of EUR 35,000 was paid to the player
between January and March 2011 and, in support of its allegations, submitted several
payment receipts in the language of country C allegedly signed by the player.
39.
The Chamber further took into account that the Claimant/Counter-Respondent does not
contest having received the amounts indicated on said receipts, however, states that
these payments refer to late payments, since the Respondent/Counter-Claimant has
failed to pay his salaries in a timely manner since the beginning of the contract.
40.
In view of the foregoing, the Chamber deemed that the Respondent/Counter-Claimant
bore the burden of proof regarding the fulfilment of all payments mentioned as
outstanding by the Claimant/Counter-Respondent. In particular, the receipts provided,
in addition to not having been translated into one of the FIFA languages as required by
art. 9 lit. e) of the Procedural Rules, cannot be allocated to specific monthly salaries,
since the reason of payment is not specified and, thus, it is not clear to which months
they refer to. In this respect, the Chamber pointed out that if the Respondent/CounterClaimant wished to have proven that it had fulfilled all of its financial obligations
towards the Claimant/Counter-Respondent, it could have submitted more substantial
evidence thereof, such as providing all payment receipts that were issued in favour of
the Claimant/Counter-Respondent during the employment relationship.
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41.
Based on the foregoing, the Chamber concluded that the player’s partial salaries of
January and February 2011, as well as his salary of March 2011, in the total amount of
EUR 28,000 were outstanding by the time the contract was unilaterally terminated by
the Respondent/Counter-Claimant on 20 April 2011.
42.
In addition, the Chamber has taken into account that the Respondent/Counter-Claimant
does not contest the existence of outstanding rent payments towards the
Claimant/Counter-Respondent in the amount of EUR 1,250, which were equally due by
the time the contract was terminated.
43.
Furthermore, the Chamber took note of the fact that the Claimant/Counter-Respondent
stated that the amount of EUR 12,500 due as bonuses was also outstanding by the time
of termination. In this respect, the Chamber considered that no proof of the existence
of such debt had been provided by the Claimant/Counter-Respondent and concluded,
accordingly, that the Claimant/Counter-Respondent’s claim pertaining to outstanding
bonuses for matches played should be rejected, also recalling the principle of art. 12
par. 3 of the Procedural Rules.
44.
Hence, the Dispute Resolution Chamber held that, according to the legal principal of
pacta sunt servanda, the Respondent/Counter-Claimant shall be held liable to pay the
total amount of EUR 29,250 to the Claimant/Counter-Respondent as outstanding
remuneration, corresponding to his partial salaries for January and February 2011 (EUR
7,000 each), his salary for March 2011 (EUR 14,000) and rent expenses for March 2011
(EUR 1,250).
45.
Having established the above, the Chamber turned its attention to the question of the
consequences of the Respondent/Counter-Claimant’s termination of the contract
without just cause.
46.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that
the Claimant/Counter-Respondent is entitled to receive compensation from the
Respondent/Counter-Claimant for the termination of the contract without just cause in
addition to the aforementioned amount of EUR 29,250 on the basis of the relevant
employment contract.
47.
The members of the Chamber firstly recalled 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
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on the existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
48.
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. The members of
the Chamber assured themselves that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
49.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent/Counter-Claimant to the Claimant/CounterRespondent 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 nonexhaustive 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. In this regard, the Dispute Resolution
Chamber emphasized beforehand that each request for compensation for contractual
breach has to be assessed by the Chamber on a case-by-case basis taking into account all
specific circumstances of the respective matter.
50.
In order to estimate the amount of compensation due to the Claimant/CounterRespondent in the present case, the members of the Chamber first turned their
attention to the remuneration and other benefits due to the Claimant/CounterRespondent under the existing contract and/or the new contract, which criterion was
considered by the Chamber to be essential. The members of the Chamber deemed it
important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the
Chamber to take into account both the existing contract and the new contract in the
calculation of the amount of compensation.
51.
In accordance with the contract signed by the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant, which was to run for thirteen months more, i.e. until 31
May 2012, after the breach of contract occurred, the Claimant/Counter-Respondent was
to receive the total amount of EUR 203,000, made up of EUR 168,000 of remuneration
plus EUR 35,000, payable on 30 June 2011. Consequently, the Chamber concluded that
the amount of EUR 203,000 serves as the basis for the final determination of the
amount of compensation for breach of contract.
52.
The Chamber then took due note of the employment situation of the Claimant/CounterRespondent after the termination of the contract with the Respondent/CounterClaimant and of the relevant new employment contract that he had entered into. It was
duly noted that, on 14 June 2011, the Claimant/Counter-Respondent and the club B
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from country N signed a new employment contract, valid as from 1 July 2011 until 30
June 2013, according to which the Claimant/Counter-Respondent is entitled to a gross
monthly salary of EUR 15,000. Consequently, the members of the Chamber established
that the value of the new employment contract concluded between the
Claimant/Counter-Respondent and club B from country N for the period as from 1 July
2011 until 31 May 2012 amounts to EUR 165,000.
53.
Consequently, and bearing in mind the provision of art. 17 par. 1 of the Regulations
and in accordance with the constant practice of the Dispute Resolution Chamber as well
as the general obligation of the player to mitigate his damages, such remuneration
under the new employment contract(s) shall be taken into account for the calculation of
the amount of compensation for breach of contract.
54.
For all the above reasons, the DRC judge decided to partially accept the claim of the
Claimant/Counter-Respondent and holds the Respondent/Counter-Claimant liable to pay
the player the total amount of EUR 38,000 (EUR 203,000 - EUR 165,000), as
compensation for the breach of contract without just cause.
55.
Finally, the Chamber decided to reject the request of the Respondent/Counter-Claimant
to deduct the amount of EUR 9,000 from any type of compensation possibly payable to
the Claimant/Counter-Respondent, based on the fact that the aforementioned fines
refer to an alleged misbehaviour of the player on and off the field, the existence of
which could not be proved by the Respondent/Counter-Claimant by means of consistent
evidence, as previously mentioned by the Chamber, referring to art. 12 par. 3 of the
Procedural Rules.
56.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant/Counter-Respondent is
rejected.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, player Z from country N, is admissible.
2.
The claim of the Claimant/Counter-Respondent, player Z from country N, is partially
accepted.
3.
The Respondent/Counter-Claimant, club E from country C, is ordered to pay to the
Claimant/Counter-Respondent, player Z from country N, outstanding remuneration in
the amount of EUR 29,250 net, within 30 days as from the date of notification of the
present decision.
4.
The Respondent/Counter-Claimant, club E from country C, has to pay to the
Claimant/Counter-Respondent, player Z from country N, compensation for breach of
contract in the amount of EUR 38,000, within 30 days as from the date of notification
of this decision.
5.
If the aforementioned sums are not paid within the above-mentioned time limit, an
interest rate of 5% p.a. will apply on the said amounts as of expiry of the fixed time
limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
6.
Any further claims lodged by the Claimant/Counter-Respondent, player Z from country
N, are rejected.
7.
The Claimant/Counter-Respondent, player Z from country N, is directed to inform the
Respondent/Counter-Claimant, the club E from country C, 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.
8.
The counterclaim of the Respondent/Counter-Claimant, club E from the country C, is
rejected.
*****
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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
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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