Labour Disputes
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,
N,
as Claimant / Counter-Respondent
against the club,
A,
as Respondent / Counter-Claimant
and the club,
V,
as Intervening Party
regarding an employment-related dispute between the parties
I. Facts of the case
Facts relating to the preliminary issue of competence:
1.
On 5 May 2011, the country D player, N (hereinafter: player or Claimant /
Counter-Respondent) lodged a claim against the country C club, A (hereinafter:
club or Respondent / Counter-Claimant) in front of FIFA for breach of contract.
2.
In its initial reply to the claim, the club requested FIFA to cease the proceedings
as the matter at hand was, as of 15 June 2011, allegedly pending in front of the
District Court of country C.
3.
Subsequently, the player stated that he was unaware whether the case at hand
had been effectively submitted in front of a country C regional court, however,
regardless whether this was the case or not, he referred to art. 12 of the
employment contract and art. 13 of the appendix to the employment contract,
and maintained that the parties had jointly agreed that the Dispute Resolution
Chamber of FIFA will be the competent deciding body in case of any dispute.
4.
Art. 12 of the employment contract and art. 13 of the appendix to the
employment contract state that “this agreement will be governed by the laws
of the Republic of country C and FIFA Regulations or/and Football Association C
[Football Association C] Regulations. Concerning this agreement FIFA
regulations will be applicable and the dispute resolution chamber of FIFA will
be competent court”.
5.
In its second submission, the club reiterated its initial stance regarding FIFA´s
alleged lack of competence in the matter at hand, indicating that the
consequences of a pending proceeding at a civil court with regard to the same
matter, is that the competence of FIFA ceases to exist.
6.
In this context, the club referred to the first sentence of art. 22 of the
Regulations on the Status and Transfer of Players, which indicates that FIFA is
competent to hear “without prejudice to the right of any player or club to seek
redress before a civil court for employment-related disputes”. Moreover, 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”.
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7.
Furthermore, the club asserted that the player has fundamentally
misinterpreted the contractual provisions as well as the respective FIFA
regulations and claimed that the right of any party to seek redress before a civil
court is a fundamental and indispensable right. The club maintained that the
only meaning of art. 12 of the employment contact is that the parties agreed to
bring a possible dispute to the FIFA Dispute Resolution Chamber (DRC) and not
to the National Dispute Resolution Chamber in country C, but only if the dispute
had not been “adjudicated” by a state court. According to the club, this is
further supported by the wording and structure of the contractual provisions
(i.e. 1st sentence of art. 12 of the employment contract), which stipulate that
“this agreement will be governed by the laws of the Republic of country C” and
only in a second step reference is made to the FIFA regulations.
8.
Moreover, the club maintained that whether the lawsuit before the 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 the DRC, as the principle
of “litispendency” may only apply between deciding bodies that are on the
same level. In this respect, the club claimed that the question of who lodged the
claim first becomes irrelevant, as apparently the DRC is not a “true” arbitration
tribunal.
9.
Consequently, the club argued that once the claim had been registered with the
district court of country C, the competence of the DRC should have ceased.
Moreover, the club alleged to have formally notified the player of the
proceedings taking place at the country L district court.
10.
In reaction, the player reiterated that the only competent body to decide in the
dispute at hand is FIFA´s Dispute Resolution Chamber. By signing the
employment contract and the subsequent appendix, the parties explicitly chose
to have their disputes resolved by the FIFA Dispute Resolution Chamber.
11.
The player also considered that the club´s concept of “fundamental rights”
should not be taken seriously, as fundamental rights should primarily address
the weaker party, which in a labour dispute per definition is the worker.
12.
The club refuted the player´s assertion that “fundamental rights primarily
address the weaker party which in a labour dispute per definition is the
worker”. According to the club, it has been well established that football
players are considered to be employees and not workers and it furthermore
raised the issue as to whether a football player, “earning thousands of Euros per
year”, can really be considered the “weaker party”. In this respect, the club also
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directed the player to the contents of art. 22 of the Regulations on the Status
and Transfer of Players, which specifically stipulates that players and clubs have
the right to seek redress before a civil court for employment related disputes.
Facts relating to the substance of the matter:
13.
On 17 June 2010, the player and the club signed an employment contract valid
as from the date of signature until 31 May 2012.
14.
On the same day, the player and the club signed an “appendix” to the
employment contract, valid as from 19 June 2010 until 31 May 2012.
15.
In accordance with the employment contract, for the 2010-2011 and 2011-2012
seasons, the player was entitled to receive inter alia the total amount of EUR
100,000 per season in ten monthly equal installments of EUR 10,000 as from 1
September 2010 until 1 June 2011 and as from 1 September 2011 until 1 June
2012, respectively.
16.
Furthermore, and in accordance with the appendix, for the 2010-2011 and 20112012 seasons, the player was entitled to receive inter alia the total amount of
EUR 150,000 per season: EUR 50,000 to be paid at the signing of the appendix,
EUR 50,000 to be paid on 30 June 2011 and EUR 100,000 payable in ten monthly
equal installments of EUR 10,000 as from 1 September 2010 until 1 June 2011
and as from 1 September 2011 until 1 June 2012, respectively.
17.
Article 4 of the contract and art. 5 of the appendix indicate that “the employer
guarantees that the agreed salary, signing on fee, bonuses and all other
benefits as mentioned in this agreement are net amounts”.
18.
Moreover, art. 7(a) and art. 7(k) of the appendix indicate that the player was
also entitled to receive from the club:
- EUR 34,800 payable in twenty four monthly equal installments of EUR 1,450
as housing costs and;
- EUR 1,000 for each point gained in a championship season.
19.
Article 5 of the employment 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”.
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20.
In addition, art. 10 of the employment 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”.
21.
Moreover, art. 11 par. a) and b) of the employment 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) [and] 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
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 which can objectively
defined as being reasonable regarding team rules pursuant to the internal
regulations of the team”.
22.
On 20 April 2011, based on art. 11 par. a) and b) of the employment 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 employment contract, as well as art. 6 and 11 of the appendix.
23.
The player claims that, on 20 April 2011, the club had terminated the
employment contract and the appendix without just cause and should be
therefore held responsible for the payment of the total net amount of EUR
361,200:
1) Outstanding remuneration: EUR 49,450
a) Monthly Salary:
EUR 10,000 corresponding to 50% of the salary for January 2011,
EUR 10,000 corresponding to 50% of the salary for February 2011,
and EUR 20,000 for the salary of March 2011.
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b) Rent and bonus:
EUR 1,450 for the monthly rent of March 2011 and EUR 8,000 for
the points acquired in the Championship.
2) Compensation: EUR 311,750
a) EUR 40,000 corresponding to the salaries of April and May 2011;
b) EUR 50,000 corresponding to the amount due on 30 June 2011;
c) EUR 200,000 corresponding to the salaries as of September 2011
until June 2012;
d) EUR 21,750 corresponding to the rent as from of April 2011 until
May 2012.
24.
The player further requests that the penalty imposed on him by the club, in the
amount of EUR 3,000, be cancelled.
25.
The player explains that, on 22 March 2011, the club requested him to sign a
document, by means of which he would have confirmed that the club as of
December 2010 had fulfilled all its financial obligations towards him.
26.
He refused to sign such a document, claiming to have always fulfilled his
contractual and sportive obligations towards the club, being the latter still
responsible for the payment of 50% of his salaries for January and February
2011.
27.
In case the DRC declares itself competent to decide on the matter at hand, the
club subsidiarily presented its comments to the claim lodged by the player.
28.
In this respect, the club maintains that the player´s behaviour on and off the
field did not meet the expectations of a football player; the player allegedly
abandoned training sessions, refused to follow team instructions, insulted team
coaches, stayed out late, drank large amounts of alcohol and was even caught
smoking.
29.
On 16 January 2011, and as a result of the above-mentioned incidents, the
player was allegedly imposed with a EUR 3,000 fine, with a one match
suspension and was subsequently warned that any future misbehaviour would
result in the termination of the contract. The club claims that given the player´s
refusal to present himself in the club´s offices, the “notice” relating to these
sanctions and warning was first posted in the dressing room´s announcement
board and, subsequently sent to the Football Association C.
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30.
According to the club, on 3 February 2011, the player was once again
sanctioned with a EUR 3,000 fine for repeated unsporting and unprofessional
behaviour, as he allegedly refused to follow several important committee
instructions whilst also failing to provide the club with a valid excuse. The
relevant “last and final notice” stated that “if such a behavior occurs again at
any time and in any way we will immediately terminate your contract”. This
notice was sent to the Football Association C.
31.
In addition, the club maintains that the player jeopardized his performances as
a professional football player by failing to attend several medical appointments
organised by the club’s administration. The club presented the following
documents in this regard:
- a statement from the club´s medical director dated 20 August 2011;
- a statement from an orthopaedic surgeon dated 22 August 2011;
- an undated statement from a clinical dietician.
32.
Finally, on 20 April 2011, as the player´s behaviour remained unchanged, the
club decided to terminate the employment contract with the player, whilst also
sanctioning him with another EUR 3,000 fine.
33.
In this respect and taking into consideration the requirements stipulated in art.
11 of the employment contract and art. 12 of the appendix as well as the
repeated warnings and fines presented to the player, the club deemed it more
than fair to terminate the employment contract with the player.
34.
Subsequently, the club holds the player responsible for breach of contract
without just cause, requesting compensation in the amount of EUR 500,000 on
the basis of the elements stipulated in art. 17 of the Regulations on the Status
and Transfer of Players.
35.
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 amount of EUR 361,200.
36.
According to the club, the player should not be entitled to:
- EUR 8,000 in bonus as he has failed to provide any substantial evidence;
- EUR 21,750 in rent, as he left country C at the end of April 2011;
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- EUR 50,000 as it corresponds to the second part of the signing-on fee and
therefore does not correspond to his salary. The club refers to past DRC
decisions and maintains that in case of a premature termination of a
contract, the remaining signing-on fee installments have to be calculated on
a basis “pro rata temporis”.
37.
Moreover, the club alleges that the player signed an employment contract with
the club V as of July 2011 and therefore, all salaries and bonuses earned by the
player under such contract must also be deducted from any possible
compensation.
38.
Finally, the club 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.
39.
In reply to the club´s position regarding the substance of the case as well as its
counterclaim, the player presents the following defence.
40.
The player first of all denies all accusations and maintains that prior to the
termination letter and the 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 notice letters of 16 January 2011 and 3 February 2011
and further maintains that the letters sent to the Football Association C cannot
serve as evidence in the dispute, as the player himself was never formally
notified.
41.
Moreover, the accusations brought forward by the club are not substantiated by
any real evidence, as the statements presented are either written after the date
of the termination (or bear no date at all) or are written by people from or
connected with the club.
42.
With regard to the club´s counterclaim, the player asserts that it was the club
who terminated the contract with no prior notice; the alleged notice letters of
16 January 2011 and 3 February 2011 were not formally notified to the player
and thus cannot be accepted as evidence sustaining the termination of the
contract by the club with just cause.
43.
Nevertheless, the player does not contest the club´s position regarding the
housing costs but insists that no other deduction should be accepted. The
respective fines claimed by the club were never notified to the player and thus
should not be deducted.
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44.
Finally, and on the grounds of the above-mentioned facts, the player maintains
his initial stance and subsequently rejects the counterclaim presented by the
club.
45.
The club, for its part, refers to art. 12 par. 1 of the Rules Governing the
Procedures of the Players´ Status Committee and the Dispute Resolution
Chamber, 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 have taken place in the past.
46.
Moreover, the club contests the player´s allegations regarding the amounts paid
to the latter prior to the contract termination. In this respect the club claims to
have paid the player the total amount of EUR 60,000, between December 2010
and March 2011: EUR 10,000 on 28 December 2010, EUR 10,000 on 21 January
2011, EUR 10,000 on 10 February 2011, EUR 10,000 on 4 March 2011 and EUR
20,000 on 31 March 2011. The club presented the following “salary” payment
receipts in this regard:
- Payment receipt for EUR 10,000 dated 21/1/2011;
- Payment receipt for EUR 10,000 dated 10/2/2011;
- Payment receipt for EUR 10,000 dated 4/3/2011;
- Payment receipt for EUR 20,000 dated 31/3/2011;
47.
In reply to the club´s allegations regarding the actual amounts paid to the
player prior to the contract termination, the player reiterates his initial stance
and argues that the payment receipts presented by the club should not be
allowed in the procedure as they are written in country G language and one of
them has even been presented twice.
48.
In addition, the player alleges not to have received any payment on 31 March
2011 and states that the dates which appear on the payments receipts do not
represent the relevant months in which they were actually due.
49.
The player also reiterates that abide the notification contained in the
termination letter, he was never warned, suspended or fined. Had he been
indeed warned or fined, he should have been offered the possibility to be
heard.
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50. In its final position, the club refutes the comments presented by the player as to
the payment receipts and clarifies that the one that was submitted twice was
only done so as a result of the respective translation also being enclosed.
Moreover, the club claims that the payment of EUR 20,000 on 31 March 2011
was duly confirmed by the player himself with his signature on the respective
payment receipt.
51. In reply to FIFA´s request, the player has indicated that on 3 August 2011, he
signed an employment contract with club V, valid as from 1 July 2011 until 30
June 2012, with a gross salary for the 2011-2012 season of EUR 200,000.
52. Finally, having been invited by FIFA to submit its comments on the present
matter, the intervening party, club V, (hereinafter: new club or intervening
party), first and foremost aims to highlight that cub A did not request the new
club to be jointly and severally liable for any potential future payment of the
player, nor did it request for sporting sanctions to be imposed on any new club.
53.
In this respect, and in accordance with the “non ultra petitum rule” as well as to
constant DRC and CAS jurisprudence, the new club deems that it cannot be held
jointly and severally liable for the payment of any future compensation and
subsequently cannot be imposed with any sporting sanctions.
54.
Furthermore, the new club claims that no issue should be posed on whether or
not they induced the player to breach his contract, as the player, on 20 April
2011, was provided by club A with a termination letter which clearly stated that
the employment agreement between club A and the player was terminated
with immediate effect.
55.
Moreover, the new club alleges to have only been approached by the player
once the contract had been terminated by club A. The player apparently
informed the new club that he was “free of contract” and was therefore not
contractually linked to any other club.
56.
In this respect, the player allegedly provided the new club with a letter dated 29
April 2011, issued by the President of club A and addressed to the player´s
agent, which stated that “our Club has terminated the Agreements with the
professional football player that you represent Mr. N because he breached the
articles 5(a) and 10 of the Agreement signed on 17/06/2010 and articles 6(a) and
11 of the Appendix signed on 17/06/2. As a result and according to FIFA
regulations you are obliged to search for another team for your client”.
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57.
In line with the above-mentioned letter, and in accordance with constant
jurisprudence of the DRC, the new club claims to have been legally permitted to
rely on the information presented by the player and his agent.
58.
Subsequently, it was only after having been contacted by the player and after
having been provided with the sufficient proof and information, that the new
club showed actual interest in the player. On 4 July 2011, the player participated
in a training session with the new club for the very first time, and it was not
until 3 August 2011, that the player and the new club concluded an
employment contract.
59.
In line with the above-mentioned facts, and taking into account that the new
club was provided with evidence, such as the termination letter and the letter
addressed to the player´s agent, the new club considers not to have induced the
player to breach his contract and to have acted in absolute good faith in the
matter at hand.
*****
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or 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 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 5 May 2011, thus after 1 July 2008.
Consequently, the Chamber concluded that the 2008 edition of the Procedural
Rules is 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 (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 and a club.
3.
However, the Chamber acknowledged that the Respondent / Counter-Claimant
contested the competence of FIFA’s deciding bodies invoking lis pendens on
the basis that the Respondent / Counter-Claimant had lodged a claim against
the Claimant / Counter-Respondent in front of the country C district court on
15 June 2011. In this regard, the Respondent / Counter-Claimant referred to
art. 22 lit. b) of the Regulations on the Status and Transfer of Players, and art.
2 of chapter III of the FIFA Manual Players’ Status and Disciplinary Matters.
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, therefore, cannot be opened to the disposition of
contractual parties. In this context, the Respondent / Counter-Claimant deems
that art. 12 of the employment contract, which was invoked by the Claimant /
Counter-Respondent, 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.
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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 stated that,
as per the second sentence of art. 12 of the employment 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 on 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 country C court. 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 front of the country C court,
since the “writ of summons” and “endorsement claim”, which were presented
by the Respondent / Counter-Claimant are not conclusive as to the actual
notification of any court proceedings to the Claimant / Counter-Respondent.
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10.
In any case, the Chamber highlighted that the alleged proceedings in front of
the country C court, according to the Respondent / Counter-Claimant, were
lodged on 15 June 2011 i.e. after the date on which the Claimant / CounterRespondent lodged his claim in front of the FIFA DRC.
11.
In addition, the Chamber paid due consideration to the clear wording of the
second sentence of art. 12 of the employment 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.
12.
Moreover, the DRC took note of the argument of the Respondent / CounterClaimant, 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 (CAS) as a body of appeal, which has been
recognised by the Swiss Federal Tribunal as an arbitration body.
13.
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.
14.
On account of the above, the Chamber rejected the Respondent / CounterClaimant’s objection and declared itself competent to decide on the matter at
hand between a player and a club, in accordance with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players and with art. 12 of the
employment contract.
15.
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 par. 2 of the Regulations
(edition 2010) and considering that the present matter was submitted to FIFA
on 5 May 2011, the 2010 edition of said Regulations is applicable to the
present matter as to the substance.
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16.
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.
17.
In this respect, the Chamber acknowledged that it was undisputed by the
parties that, on 17 June 2010, the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant signed an employment contract as well as an
appendix to it, the contract being valid as from 17 June 2010 until 31 May 2012
and the appendix as from 19 June 2010 until 31 May 2012. In accordance with
both the employment contract and the appendix, the player was entitled to
receive inter alia EUR 200,000 net, for the season 2010/2011, payable in ten
monthly instalments of EUR 20,000 as from 1 September 2010 until 1 June 2011
as well as EUR 200,000 net, for the season 2011/2012, payable in ten monthly
instalments of EUR 20,000 as from 1 September 2011 until 1 June 2012; EUR
50,000 as signing-on fee; EUR 50,000 payable on 30 June 2011; EUR 1,450 as
monthly rent expenses, payable for 24 months; and several bonuses.
18.
Moreover, the Chamber noticed that it was equally undisputed by the parties
that the aforementioned employment contract and appendix were unilaterally
terminated by the Respondent / Counter-Claimant on 20 April 2011.
19.
The Chamber further acknowledged that according to art. 11 par. a) and b) of
the employment contract and 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”.
20.
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 and the appendix to it without just cause. In this respect, the Claimant
/ Counter-Respondent emphasised that the reasons put forward by the
Respondent / Counter-Claimant in its letter of termination do not constitute a
just cause to terminate an employment contract.
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21.
Furthermore, the Claimant / Counter-Respondent maintained that the
Respondent / Counter-Claimant had failed to pay his remuneration for January
2011 (EUR 10,000), February 2011 (EUR 10,000) and March 2011 (EUR 20,000),
as well as his rent expenses for March 2011, in spite of the fact that he had
been fulfilling all his contractual and sportive obligations towards the club.
Moreover, the Claimant / Counter-Respondent 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.
22.
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 and its appendix with immediate effect, based on
the fact that the Claimant / Counter-Respondent had allegedly breached art. 5
and 10 of the employment 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 and for showing unsatisfactory performance
on the field.
23.
The Chamber went on examining the answer of the Respondent / CounterClaimant 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 16 January 2011
and 3 February 2011, which were published via the club’s announcement
board and then subsequently sent to the Football Association C.
24.
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 500,000 from the player
on the basis of the elements stipulated in art. 17 of the Regulations on the
Status and Transfer of Players. Subsidiarily and in the event that the DRC
would hold the Respondent / Counter-Claimant liable for breach of contract,
the latter submitted that the following amounts are to be deducted from the
amount claimed by the Claimant / Counter-Respondent: EUR 8,000 in bonus as
the Claimant / Counter-Respondent failed to provide any substantial evidence
thereof; EUR 21,750 corresponding to the rent as from April 2011 until May
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2012, since the Claimant / Counter-Respondent left country C at the end of
April 2011; EUR 50,000 as it corresponds to the second part of the signing-on
fee and therefore does not correspond to his salary; and EUR 9,000
corresponding to the total amount of fines imposed by the club on the player.
25.
Finally, the members of the DRC took note of the position of the intervening
party, club V, who maintained to have acted in absolute good faith and not to
have induced the player to any breach of contract. According to club V, the
Claimant / Counter-Respondent provided them with the termination letter
issued by the Respondent / Counter-Claimant on 20 April 2011 and
subsequently assured them that he was a free player whilst also maintaining
that he had not breached his previous contract. In this respect, the intervening
party deems that it cannot be held jointly and severally liable for the payment
of any compensation for breach of contract and that no sporting sanctions can
be imposed on it.
26.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the player and the
counterclaim of the club A, was to determine whether the employment
contract had been unilaterally terminated with or without just cause and
which party was responsible for 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 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.
27.
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.
28.
In this respect, the Chamber analysed the documentation provided by the
Respondent / Counter-Claimant in support of the allegation that the Claimant /
Counter-Respondent would have acted in breach of art. 5 and art. 10 of the
employment contract, and of art. 6 and art. 11 of the appendix and, in
particular, that the Claimant / Counter-Respondent had shown an
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unprofessional and inappropriate conduct towards the Respondent / CounterClaimant.
29.
In this context, the Chamber noticed that the only documentation provided by
the Respondent / Counter-Claimant in this respect were personal statements
from the club´s employees or persons otherwise appointed by the club. In this
regard, the Chamber was eager to emphasize that the information contained
in a statement made by a person closely linked to the club, which is, moreover,
not supported by any additional documentation whatsoever, is of a mainly
subjective perception and might be affected by diverse contextual factors;
therefore, the credibility of such type of documentation is quite limited.
30.
Furthermore, the Chamber was eager to underline that the Respondent /
Counter-Claimant equally failed to present proof of delivery 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 16 January 2011 and 3 February 2011 were
communicated to the Claimant / Counter-Respondent via the club’s
announcement board and sent to the Football Association C.
31.
In this respect, the Chamber recalled the wording of art. 11 of the employment
contract and art. 12 of the appendix, 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 provisions, the Chamber
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 a registered letter.
33.
In the present case, the Chamber noted that the Respondent / CounterClaimant alleges that the written notices to the player were posted on the
club’s announcement board and sent to the Football Association C, which the
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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 employment 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 established that the formal prerequisites of art.
11 of the employment 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 / Counter-Respondent, 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 always only
be used as ultima ratio.
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 the employment contract and
appendix with just cause, nor did it provide evidence of its compliance with
the prerequisites for a premature contractual termination as established in art.
11 of the employment contract and art. 12 of the appendix. Therefore, the
Chamber concluded that the Respondent / Counter-Claimant had terminated
the employment contract and its appendix without just cause and
subsequently also decided that the counterclaim lodged by the Respondent /
Counter-Claimant against the Claimant / Counter-Respondent 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 employment contract and its
appendix were terminated by the Respondent / Counter-Claimant.
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37.
In this regard, the Chamber noted that the Claimant / Counter-Respondent
claims that the Respondent / Counter-Claimant had failed to pay his salaries as
from January to March 2011, in the total amount of EUR 40,000 net as well as
EUR 1,450 as rent expenses for March 2011 and EUR 8,000 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 60,000
was paid to the player between December 2010 and March 2011 and, in
support of its allegations, it submitted the following payment receipts,
allegedly signed by the player, only one of which was translated into English:
receipt for EUR 10,000 dated 21/1/2011; receipt for EUR 10,000 dated
10/2/2011; receipt for EUR 10,000 dated 4/3/2011; receipt for EUR 20,000 dated
31/3/2011.
39.
The Chamber further took into account that the Claimant / CounterRespondent argued that the payment receipts should not be taken into
account as, on the one hand, they were written in country G language and, on
the other hand, the dates which appear on said receipts did not represent the
relevant months in which the payments were actually due.
40.
In view of the foregoing, the Chamber deemed that the Respondent / CounterClaimant bore the burden of proof regarding the payments mentioned as
outstanding by the Claimant / Counter-Respondent. In particular, the receipts
provided, in addition to not having been all translated into one of the official
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 / Counter-Claimant wished to
have proven that it had fulfilled all 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.
41.
Based on the foregoing, the Chamber concluded that the player’s salaries for
January to March 2011 in the total net amount of EUR 40,000 were
outstanding by the time the contract was unilaterally terminated by the
Respondent / Counter-Claimant on 20 April 2011.
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42.
In addition, the Chamber noticed that the Respondent / Counter-Claimant did
not contest the player´s claim relating to the outstanding rent payments in the
amount of EUR 1,450 for March 2011, which were equally due by the time the
contract was terminated.
43.
Furthermore, the Chamber took note of the fact that the Claimant / CounterRespondent stated that the amount of EUR 8,000 due as bonuses was also
outstanding at the time of the termination, which amount was contested by
the Respondent / Counter-Claimant. In this respect, the Chamber agreed with
the Respondent / Counter Claimant’s argument, according to which no proof
regarding the existence of such debt had been provided by the Claimant /
Counter-Respondent and concluded therefore, that the Claimant / CounterRespondent’s claim pertaining to outstanding bonuses for matches played
should be rejected.
44.
Hence, the Dispute Resolution Chamber held that, according to the legal
principle of pacta sunt servanda, the Respondent / Counter-Claimant is liable
to pay the total amount of EUR 41,450 net to the Claimant / CounterRespondent as outstanding remuneration, corresponding to his partial salaries
for January and February 2011 (EUR 10,000 each), his salary for March 2011
(EUR 20,000) and rent expenses for March 2011 (EUR 1,450).
45.
Having established the above, the Chamber turned its attention to the
question of the consequences of the unilateral termination of the employment
contract and appendix by the Respondent / Counter-Claimant without just
cause, on 20 April 2011.
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 employment contract and appendix without just cause in addition to the
aforementioned amount of EUR 41,450 net on the basis of the employment
contract and appendix.
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 on the existing contract
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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 and appendix
contain 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 / Counter-Respondent had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled
that said provision provides for a non-exhaustive enumeration of criteria to be
taken into consideration when calculating the amount of compensation
payable. 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 /
Counter-Respondent in the present case, the members of the Chamber first
turned their attention to the remuneration and other benefits due to the
Claimant / Counter-Respondent 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 employment contract and appendix signed by the
Claimant / Counter-Respondent and the Respondent / Counter-Claimant, which
were 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 290,000, made up of EUR 240,000 relating to salaries as of
April 2011 until May 2012 plus EUR 50,000, payable on 30 June 2011. In this
context, the Chamber bore in mind that the Claimant / Counter-Respondent
had agreed with the Respondent / Counter-Claimant´s position that the
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contractual rental payments of EUR 1,450 per month for April 2011 until May
2012 shall not be taken into consideration. Consequently, the Chamber
concluded that the amount of EUR 290,000 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
/ Counter-Respondent after the termination of the employment contract and
appendix with the Respondent / Counter-Claimant and of the relevant new
employment contract that he had entered into. It was duly noted that, on 3
August 2011, the Claimant / Counter-Respondent and the club V, signed an
employment contract, valid as from 1 July 2011 until 30 June 2012, according
to which the player was entitled to a gross monthly salary of approx. EUR
16,666. Consequently, the members of the Chamber established that the value
of the new employment contract concluded between the Claimant / CounterRespondent and club V for the period as from 1 July 2011 until 31 May 2012
amounts to approx. EUR 183,334.
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 considerations, the Chamber decided to partially accept the
Claimant / Counter-Respondent´s claim and that the Respondent / CounterClaimant must pay the amount of EUR 106,666, which was considered to be a
reasonable and proportionate amount of compensation for breach of contract
in the specific case at hand.
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 relevant fines had not been duly and properly notified to
the player as established above.
56.
In conclusion, the Dispute Resolution Chamber decided that the Respondent /
Counter-Claimant has to pay EUR 41,450 net to the Claimant / CounterRespondent relating to the contractual remuneration and rent due on the
basis of the services rendered by the latter until the unilateral termination of
the relevant employment contract and appendix by the club as well as EUR
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106,666 as compensation for the unjustified breach of the contract and
appendix by the Respondent / Counter-Claimant.
57.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further request filed by the Claimant / CounterRespondent is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, N, is admissible.
2.
The claim of the Claimant / Counter-Respondent is partially accepted.
3.
The Respondent / Counter-Claimant, Club A, has to pay to the Claimant /
Counter-Respondent outstanding remuneration in the amount of EUR 41,450
net within 30 days as from the date of notification of the present decision.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent compensation for breach of contract in the amount of EUR 106,666
within 30 days as from the date of notification of this decision.
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5.
If the aforementioned sums are not paid by the Respondent / Counter-Claimant
to the Claimant / Counter-Respondent within the above-mentioned time limits,
an interest rate of 5% p.a. will apply on said amounts as of expiry of the fixed
time limits 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 are rejected.
7.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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 is rejected.
*****
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
25/26
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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