Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
on the claim presented by the player
C,
as Claimant
against the club
S,
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
On 1 July 2008, the country T club, S (hereinafter: the Respondent), and the
country S player, C (hereinafter: the Claimant), concluded an employment contract
(hereinafter: the contract) with a duration of two years, i.e. from 1 July 2008 until
30 June 2010.
2.
According to clause 3.1.1 of the contract, the remuneration of the Claimant for his
services was of EUR 60,000 net, payable in twelve monthly instalments of
EUR 5,000 each, during the first year of the contract. The financial conditions for
the second year of the contract would be revised before 30 April 2009.
3.
Clause 6.5 of the contract stipulates that the Respondent would be allowed to
unilaterally terminate the contract in case the Claimant was injured during at least
three consecutive months in compliance with a medical report or by a decision of
the “órgano de Administración de Sanidad Estatal”.
4.
In accordance with clause 3.1.1 of the contract, the Claimant shall receive the full
salary during the first fifteen days after the injury occurred. After fifteen days, the
Claimant would be entitled to receive 50% of his basic salary until full recovery.
5.
By a letter dated 29 April 2009, the Respondent informed the Claimant that it
would unilaterally terminate the contract as from 31 May 2009 in accordance with
clause 6.5 of the contract.
6.
On 25 May 2009, the Claimant personally delivered a letter dated 14 May 2009 to
the Respondent informing the latter that he did not agree with its decision to
unilaterally terminate the contract based on clause 6.5 of the contract. In this
context, the Claimant stated that there was no just cause for the termination,
since the cited clause would not be applicable to the present case. Equally, the
Claimant declared his intention to solve the present matter amicably.
7.
On 5 March 2010, the Claimant submitted a claim against the Respondent in front
of the Dispute Resolution Chamber (DRC), requesting the total amount of
EUR 127,000, plus 5% interest per year, as set out below:
a. EUR 31,000 corresponding to outstanding salaries;
b. EUR 96,000 as compensation for breach of contract composing of:
I. EUR 66,000 corresponding to the remaining year of the contract, i.e.
season 2009/10 (the Claimant added 10% to his salary for the season
2008/09);
II. EUR 30,000, since the contract was terminated during the protected
period.
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8.
In this respect, the Claimant stated having received the total amount of
EUR 29,000 from the Respondent, as set out below:
a. 60,252 on 18 August 2008;
b. 90,378 on 2 September 2008;
c. 150,630 on 1 October 2008;
d. 75,315 on 12 November 2008;
e. 50,000 on 5 December 2008;
f. 10,000 on 17 December 2008;
g. 15,315 on 30 December 2008;
h. EUR 4,000 on 26 January 2009;
i. EUR 2,500 on 3 March 2009;
j. EUR 2,500 on 13 March 2009;
k. EUR 2,500 on 6 April 2009;
l. EUR 2,500 on 18 May 2009.
9.
Equally, the Claimant underlined that he had never been injured for more than
three consecutive months.
10.
In its position, the Respondent stated that the Claimant had injured himself in a
match during the season 2008/09 and subsequently, was not available for the first
team until the end of autumn 2008. As a consequence, the Claimant received 50%
of his basic salary “for a long period”. In autumn 2008, the Claimant started to
train for the winter period. Meanwhile, he resumed the original injury. On this
account, the board of the Respondent decided to terminate the contract as from
31 May 2009. Finally, the Respondent referred to clauses 3.1.1 and 5.6 of the
contract regarding the salary deduction and the unilateral termination of the
contract (cf. points 3 and 4 above).
11.
In his replica, the Claimant pointed out that the Respondent only referred to
clauses 3.1.1 and 6.5 of the contract, however, without commenting the
Claimant's other statements.
12.
With regard to clause 6.5 of the contract, the Claimant stated that said article had
to be declared null. In particular, the Claimant referred to art. 13 of the FIFA
Regulations on the Status and Transfer of Players (hereinafter: the FIFA
Regulations), by means of which “a contract between a professional and a club
may only be terminated upon expiry of the term of the contract or by mutual
agreement”. Furthermore, the Claimant referred to art. 18 par. 4 and art. 18bis
par. 1 of the FIFA Regulations. However, in case clause 6.5 of the contract should
be considered to be valid, the Claimant explained that the Respondent had not
even fulfilled the conditions of this clause, i.e. the submission of a medical report
or a decision of the “órgano de Administración de Sanidad Estatal”.
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13.
Moreover, the Claimant pointed out that the medical reports provided by the
Respondent would not show an absence of three consecutive months. In this
respect, he referred to the medical report dated 29 January 2009, which confirms
that the Claimant injured himself on 28 January 2009 during a match and that he
had a similar injury six months ago. This is, according to the Claimant, he was
active between 23 September 2008 and 29 January 2009. Moreover, the Claimant
added that a sprained ankle would not be a reason for an inactivity of three
months.
14.
On 22 March 2009, the Claimant allegedly restarted participating in official
matches for the second team as well as for the first team of the Respondent. In
this respect, the Claimant pointed out that less than three months had elapsed
since his last injury occurred on 28 January 2009.
15.
Equally, the Claimant underlined that the Respondent had terminated the
contract at the end of the season and not three months after his injury.
16.
Also with regard to clause 3.1.1 of the contract, the Claimant stated that said
clause should be declared null, since it would not comply with art. 18bis par. 1 of
the FIFA Regulations. Nevertheless, the Claimant stated that in case clause 3.1.1 of
the contract was considered as valid, only a deduction of EUR 986.40 from his
salary would be justified. In particular, the Claimant explained that he was injured
only once for a period longer than 15 days, i.e. from 29 January until 25 February
2009. Therefore, he would at least be entitled to receive 100% of his salary from
29 January until 13 February 2009 and 50% of his salary from 13 until 25 February
2009.
17.
Summing up, the Claimant rejected the Respondent's position adhering to the
claimed amount of EUR 127,000 plus interest.
18.
Regarding his contractual situation as from June 2009, the Claimant informed FIFA
that on 2 September 2009, he agreed to play for the country S club, X, for the
season 2009/10. According to the Claimant, the parties verbally agreed a monthly
remuneration of EUR 300, i.e. a compensation in order to pay the gasoline
consumption arising from his drive to the training sessions.
19.
Despite having been invited to do so, the Respondent did not provide any
additional documents.
*****
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this
respect, it took note that the present matter was submitted to FIFA on 5 March
2010. Consequently, the Rules Governing the Procedures of the Players' Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of
the Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (edition 2010), it is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player and a club.
3.
Furthermore, according to art. 24 par. 2 of the Regulations on the Status and
Transfer of Players (edition 2010), the DRC can adjudicate in the presence of at
least three members, including the chairman. Consequently, the members of the
Chamber deemed themselves competent to decide on the present matter with a
composition of the chairman, as well as a player and a club representative.
4.
In continuation, the DRC analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of said Regulations (edition 2010), and considering that the
present claim was lodged on 5 March 2010, the 2009 edition of the Regulations on
the Status and Transfer of Players (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
5.
The competence of the Dispute Resolution Chamber and the applicable
regulations having been established, the members of the Chamber entered into
the substance of the matter. They started by acknowledging that, on 1 July 2008,
the parties had signed an employment contract with a duration of two years.
6.
In this regard, the members of the Chamber noted that according to clause 3.1.1
of the contract, the financial conditions for the second year of the contract would
be revised before 30 April 2009, i.e. the remuneration for the second year of the
contract had not yet been stipulated. In this respect, the Dispute Resolution
Chamber referred to the “essentialia negotii” of an employment contract, in
accordance with which such contract must contain the duration, the subordination
of the employee to the employer, the personal performance and the
remuneration. On account of the above, the Chamber emphasized that the
financial terms for the second year of the contract are missing and, therefore, the
prerequisites for a valid employment contract were not given for the second year.
As a consequence, the Chamber came to the firm conclusion that the parties had
concluded an employment contract valid as from 1 July 2008 until 30 June 2009.
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7.
Subsequently, the DRC took into account that, according to the Claimant, the
Respondent had prematurely terminated the contract as from 31 May 2009 by a
letter dated 29 April 2009. Equally, the Chamber observed that said fact was even
confirmed by the Respondent.
8.
In continuation, the Chamber went on to deliberate whether the facts of the case
constitute a just cause for the Respondent to prematurely terminate the
employment contract.
9.
In this respect, the Chamber took due note of the Respondent's argumentation
that it had terminated the contract with just cause in virtue of its clause 6.5. The
Chamber remarked that according to the Respondent, the Claimant had not been
able to play for more than three consecutive months.
10.
On the other hand, the members of the DRC noted that the Claimant contested
the validity of said clause as well as having been injured for three consecutive
months.
11.
In view of the foregoing, the members of the Chamber recalled the wording of
clause 6.5 of the contract, which stipulates that the Respondent would be allowed
to unilaterally terminate the contract in case the Claimant was injured during at
least three consecutive months in compliance with a medical report or by a
decision of the “órgano de Administración de Sanidad Estatal”.
12.
In this regard, the Dispute Resolution Chamber deemed it appropriate to analyse
the question whether such clause inserted in an employment contract could be
considered as valid at all. In that context, the Chamber was eager to emphasize
that, according to its well-established jurisprudence, and as a general rule, a
player's injury does not constitute a just cause in the sense of art. 14 of the
Regulations for a club to terminate a contract. Moreover, the Chamber, referring
to the contents of art. 18 par. 4 of the Regulations, also emphasized that once the
parties concluded an employment contract, they had the obligation to implement
its terms and a club could not unilaterally question the validity of the contract
during its course based on the physical state of a player.
13.
In view of the foregoing, the members of the Dispute Resolution Chamber were of
the unanimous opinion that the clause 6.5 of the contract invoked by the
Respondent in order to put an end to the contract was clearly invalid and that,
consequently, the respective argumentation of the Respondent could not be
upheld by the Chamber.
14.
Furthermore, the Chamber recalled the general legal 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. In
this regard, the DRC was eager to point out that even if clause 6.5 of the contract
was considered as valid, the Respondent would not have provided sufficient
documentary evidence for the player’s injury during three months without
interruption.
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15.
Taking into account all the above, the Chamber concluded that the Respondent
had terminated the contract without just cause.
16.
Having stated the above, the Chamber turned its attention to the question of the
consequences of such breach of contract committed by the club.
17.
First of all, the Chamber referred to the player's claim, according to which the
Respondent had paid him only EUR 29,000 instead of EUR 60,000 and that,
therefore, the amount of EUR 31,000 remained outstanding.
18.
Subsequently, the DRC turned its attention to the arguments of the Respondent,
which justified the reduction of the player's salary be referring to clause 3.1.1 of
the contract, which would allow the club to reduce the salary to 50% after fifteen
days of injury.
19.
In this context, the members of the Chamber wished to highlight that since
football is physical work, injuries may happen. Therefore, a reduction of the
player's salary after fifteen days only would be disproportionate. Consequently,
the DRC decided not to consider clause 3.1.1 of the contract and to reject the
Respondent's argument.
20.
Equally, the DRC took note that the Respondent did not contest having paid only
the amount of EUR 29,000 to the Claimant. According to clause 3.1.1 of the
contract, the Claimant had the right to receive a monthly salary of EUR 5,000.
Taking into account that the contract had been terminated on 31 May 2009, and
consequently, a total amount of EUR 55,000 was due, the Chamber decided that
the Respondent, in accordance with the general legal principle of “pacta sunt
servanda”, has to pay the sum of EUR 26,000 as outstanding salaries plus 5%
interest as of 1 June 2009 until the date of effective payment to the Claimant.
21.
In continuation, the Chamber was eager to point out that the measures provided
for by the Regulations concerning in particular compensation for breach of
contract without just cause serve as a deterrent discouraging the early termination
of employment contracts by either contractual party and that a lack of a firm
response by the competent deciding authorities would represent an inappropriate
example towards all the football actors.
22.
In this respect, awarding compensation in favour of the damaged party (either the
player or the club, as the case may be) has proven to be an efficient means and
has always found a widespread acceptance since it guarantees that the
fundamental principle of the respect of the contracts is duly taken care of.
23.
Above all, it was emphasized that the criteria contained in article 17 of the
Regulations are applied with the principle of reciprocity for clubs and players,
signifying that both clubs and professionals who are seen to have committed a
breach of contract without just cause will in all cases be subject to pay
compensation and, under specific circumstances, also subject to the imposition of
sporting sanctions.
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24.
Having stated the above, the Chamber focussed its attention on the calculation of
the amount of compensation for breach of contract in the matter at stake. In
doing so, the members of the Chamber firstly recapitulated that, in accordance
with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the
basis of the dispute, with due consideration for the law of the country concerned,
the specificity of sport and further objective criteria, including in particular the
remuneration and other benefits due to the player under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years as well as the fees and expenses paid or incurred by the
former club (amortised over the term of the contract) and whether the contractual
breach falls within a protected period. The Dispute Resolution Chamber recalled
that the list of objective criteria is not exhaustive and that the broad scope of
criteria indicated tends to ensure that a just and fair amount of compensation is
awarded to the prejudiced party.
25.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party in the event of breach of contract. In this
respect, the members of the Chamber established that no such compensation
clause was included in the employment contract concluded between the parties.
26.
As a consequence, the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of
the other parameters set out in art. 17 par. 1 of the Regulations. 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 caseby-case basis taking into account all specific circumstances of the respective
matter, as well as the Chamber's specific knowledge of the world of football and
its experience gained through the years.
27.
In the calculation of the amount of compensation due by the Respondent, the
Chamber then turned its attention to the remuneration and other benefits due to
the Claimant 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 emphasize 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.
28.
On this basis, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account the remuneration
due to the Claimant in accordance with the contract, as well as the time remaining
on the same contract and the professional situation of the Claimant after the early
termination occurred until 30 June 2009, when the contract had been set to
expire.
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29.
Based on the documentation on file, the DRC established that the remaining value
of the employment contract can be calculated in the amount of EUR 5,000.
30.
On the other hand, the members of the Chamber took into account the position
of the Claimant, according to which it did not play for any other club before
2 September 2009.
31.
Moreover, the DRC recalled that the Claimant claimed a compensation amounting
to EUR 96,000.
32.
In sum and based on all the considerations above, the Chamber concluded that
the amount of compensation for breach of contract to be paid by the Respondent
to the Claimant is composed of the amount of EUR 5,000 being the reflection of
the remuneration due to the Claimant under the previous contract.
33.
As a consequence, the Chamber concluded its deliberations on the present dispute
by deciding that the Respondent has to pay to the Claimant the outstanding
remuneration of EUR 26,000, plus 5% interest per annum on said amount as from
1 June 2009 until the date of effective payment, as well as EUR 5,000 as
compensation for breach of contract, plus 5% interest per annum on said amount
as from the date of the decision until the date of effective payment.
34.
Therefore, the Dispute Resolution Chamber decided that the claim of the Claimant
is partially accepted.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, C, is partially accepted.
2.
The Respondent, Club S, has to pay to the Claimant, C, within 30 days as from
the date of notification of this decision, the outstanding remuneration in the
amount of EUR 26,000, as well as 5% interest per annum on said amount as from 1
June 2009 until the date of effective payment.
3.
The Respondent, S, has to pay to the Claimant, C, within 30 days as from the
date of notification of this decision, the amount of EUR 5,000 as compensation for
breach of contract, as well as 5% interest per annum on said amount as from the
date of the decision until the date of effective payment.
4.
In the event that the above-mentioned amounts due to the Claimant, C, are not
paid by the Respondent, Club S, within the stated time limit, the present matter
shall be submitted, upon request, to FIFA‘s Disciplinary Committee for
consideration and a formal decision.
5.
Any further requests filed by the Claimant, C, are rejected.
6.
The Claimant, C, is directed to inform the Respondent, Club S, 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.
*****
Note relating to the motivated decision (legal remedy):
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According to art. 67 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
Encl. CAS directives
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