Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 April 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo Van Seggelen (Netherlands), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on a matter between the player
R,
as Claimant
and the club
Club T,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
On 26 January 2008, the D player R (hereafter: the Claimant), and the Club Tofta
(hereafter: the Respondent), signed an employment contract valid from 1
February 2008 until 31 October 2008. The said contract stipulates the manner in
which the Claimant will receive payment, and is a combination of bank transfers
and cash-in-hand payment, as follows:
-
on each of the months of February, March, April and May 2008, the player will
be paid 12,000 via bank transfer.
on each of the months of June, July, August, September and October 2008,
the player will be paid 14,000 via bank transfer.
on each of the months of February, March and April 2008, the player will
receive an additional payment of 2,000 in cash.
on each of the months of May, June and July 2008, the player will receive an
additional payment of 3,000 in cash.
on each of the months of August, September and October 2008, the player
will receive an additional payment of 4,300 in cash
2.
On 10 June 2008, the Claimant contacted FIFA explaining that the Respondent
terminated the contract on 29 April 2008 in writing, without just cause, and
without the required one month notice. The Claimant alleged that the major
reasoning for the termination was the injury he sustained whilst with the
Respondent.
3.
Therefore, the Claimant requests, as compensation, the salaries and payments for
the months of May, June, July, August, September and October of 2008, which
amount to 103,900.
4.
On 14 July 2008, the Respondent informed FIFA that the contract had been
terminated in accordance with clause 4 of the employment contract which
stipulates:
“If one of the parts fails to fulfil his obligations according to this contract, the
violated part, in spite of §3, can give a written notice to terminate the contract
with a months notice...”
5.
The reasons given by the Respondent were that, according to a letter from the
coach, the Claimant had poor attendance and attitude at training sessions, lacked
fitness and allegedly overused alcohol.
6.
On 23 July 2008 the Claimant informed FIFA that he had proposed a compromise
in which the payment would be reduced from 103,900 to 80,000. The offer made
by the Claimant apparently received no response from the Respondent, and
therefore the Claimant requested that the matter be submitted to the Dispute
Resolution Chamber for a formal decision.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the 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). The present matter was submitted
to FIFA on 10 June 2008, thus before 1 July 2008. Consequently, the Chamber
concluded that the 2005 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a D player and an F club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 10 June 2008
and that the relevant employment contract was signed on 26 January 2008. In
view of the aforementioned, the Dispute Resolution Chamber concluded that the
current version of the regulations (edition 2008; hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The Dispute
Resolution Chamber examined the documentation presented by the parties
throughout the proceedings and took note that the parties involved in the
present dispute had entered into a contractual employment relationship valid
from 1 February 2008 until 31 October 2008.
5.
In continuation, the Chamber took note that it is uncontested by the Respondent
that the contractual relationship between the parties to the present dispute had
been terminated on 29 April 2008, at the moment when the Respondent had
submitted its termination letter to the Claimant.
6.
In this respect, the Chamber observed that the Claimant claimed from the
Respondent, as compensation, the remaining salaries of 103,900 corresponding to
the 6 months after the termination by the Respondent:
−
−
−
−
15,000 for May 2008
17,000 for June 2008
17,000 for July 2008
18,300 for August 2008
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−
−
18,300 for September 2008
18,300 for October 2008
7.
Equally, the Chamber took due note that, on the one hand, the Claimant argued
that the Respondent had unilaterally terminated the contractual relationship
without just cause and, on the other hand, the Respondent was of the opinion
that the relevant employment contract had been terminated with just cause, in
particular, due to the fact that the Claimant’s behaviour was in breach of his
contractual obligations, and thus the contract was rightly terminated in
accordance with clause 4 of the employment contract, “If one of the parts fails to
fulfil his obligations according to this contract, the violated part, in spite of §3, can
give a written notice to terminate the contract with a months notice...”
8.
In this regard, first of all, the Chamber acknowledged that the contractual clause
invoked by the Respondent for the unilateral termination of the contract, lacked
objective criteria. Furthermore, the Chamber stated that the termination of the
contract for non-objective criteria would also put the Claimant at an unjustified
disadvantage, in relation to his financial rights.
9.
Therefore, the Chamber pointed out that that if such a clause would be accepted,
this would create a disproportionate allocation of the rights of the parties to the
employment contract, to the strong detriment of the Claimant.
10.
In light of the foregoing, the Chamber concluded that such a clause could not be
taken into consideration.
11.
In continuation, the Chamber went on to consider the alleged behaviour of the
Claimant, which according to the Respondent, included unsatisfactory attendance
at training sessions, a lack of fitness, a poor attitude and the use of alcohol.
12.
In this regard, the Chamber was eager to point out that, in accordance with art. 12
par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged
fact shall carry the burden of proof. In this context, the Chamber acknowledged
that, in accordance with the documentation on file, the Respondent did not
provide any documentary evidence in support of its above-stated allegations,
other than a letter from its own employee (the team coach), i.e. evidence that the
Claimant’s attendance at training was below the expected standards as a result of
his attitude, and that the Claimant consumed alcohol to such an extent that it
violated his contractual obligations. As a consequence, the Chamber decided that
the allegations of the Respondent regarding the Claimant’s behaviour, in
particular his failure to fulfil his contractual obligation, had to be rejected, since
there was not sufficient evidence provided by the Respondent in order to prove
the allegations.
13.
Likewise, the Chamber deemed it also appropriate to point out that the alleged
disciplinary infringements committed by the Claimant could in no case constitute,
per se, a valid reason for the termination of the contract. In particular, the
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Chamber emphasised that, in connection with infringements of disciplinary
standards, such as those alleged in the matter at hand, the party concerned should
only have the right to terminate the contract as ultima ratio, i.e. a case of
repeated and grave incidents, which, under the circumstances, would still require
that the Claimant be warned beforehand, of the eventual consequences of the
actions, if they were to be repeated.
14.
As a consequence, taking into consideration that the arguments invoked by the
Respondent cannot be accepted as a just cause to terminate an employment
contract, the Chamber concluded that the contractual relationship between the
Claimant and the Respondent must be considered as unilaterally terminated by
the Respondent without just cause.
15.
In this respect, the Chamber established that the Respondent, in accordance with
art. 17 par. 1 of the Regulations, is liable to pay compensation for the termination
of the contract without just cause.
16.
In calculating the amount of compensation due to the Claimant, the Chamber
considered the rest value of the relevant employment contract, as well as the fact
that the Claimant concluded no employment agreement with a new club in the
period between the termination of the contract by the Respondent (29 April 2009)
and the date on which that contract was due to end (31 October 2008).
17.
The Chamber, in consideration of all the above, decided that it was appropriate to
award the Claimant the entire rest value of the employment contract, i.e. the
salaries for the months May, June, July, August, September and October of 2008,
which it calculated to be 103,900, as compensation for breach of contract.
18.
In conclusion, the Chamber decided that the Respondent was liable to pay to the
Claimant the amount of 103,900 and, therefore, the Claimant’s claim is accepted.
***
III.
Decision of the Dispute Resolution Chamber
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1.
The claim of the Claimant, R, is accepted.
2.
The Respondent, Club T, has to pay to the Claimant, R, the amount of 103,900
within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
4.
The Claimant, R, is directed to inform the Respondent, Club T, 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):
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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