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 (The Netherlands), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on the claim presented by the player
G,
as Claimant
against the club
N,
as Respondent
regarding a contractual dispute
between the parties
I.
Facts of the case
1.
The player, G (hereinafter: the Claimant), and the club N (hereinafter: the
Respondent), entered into an employment contract (hereinafter: the contract) on 1
July 2006 with a term from 1 July 2006 to 30 June 2008 (cf. art. 4 of the contract).
2.
The contract signed by the parties states in its art. 3 that “ […] the player shall
receives or transferred to his account an amount of (700.000) USD (Seven Hundred
Thousands) USD upon signing this contract as a signing fee for the first year of the
contract, payments will be as bellow:
− (500.000) USD (Five Hundred Thousands) USD on 01/07/2006.
− (200.000) USD (Two Hundred Thousands) USD on 02.01.2007.
− (300.000) USD monthly salaries of (25.000) USD (Twenty Five Thousands) USD
per month to be paid to the player on the first day of the following month.”.
3.
Equally, the contract stipulates in art. 3 that “ […] the player shall receives or
transferred to his account an amount of (700.000) USD (Seven Hundred Thousands)
USD as a signing fee for the second year of the contract, payments will be as bellow:
− (500.000) USD (Five Hundred Thousands) USD on 01/07/2007.
− (200.000) USD (Two Hundred Thousands) USD on 02.01.2008.
− (300.000) USD monthly salaries of (25.000) USD (Twenty Five Thousands) USD
per month to be paid to the player on the first day of the following month.”.
4.
Moreover, art. 2 par L of the contract states that the Claimant shall oblige himself
“Not to depart the country without a written permission from the club
management.” and that “If the Player’s return is late beyond the agreed date, the
player will be fined (5000) USD (five Thousands) USD for each day delayed, and two
month salary if he delays more then five days”.
5.
On 24 June 2007, the Respondent sent a letter to the Claimant by means of which it
terminated the contract concluded between the parties with immediate effect, in
particular due to the following alleged reasons:
− several unauthorised departures from the country;
− unsatisfactory sporting results while being under contract with and playing
for the Respondent;
− lack of discipline while being on loan at club A in the period from 10 February
2007 to the end of the 2006/2007 football season in the E (a copy of the
original version and a translation of the loan agreement are on file). In this
respect, the Respondent, in particular, refers to “racing chanting” of the
Claimant towards an I player in a match between club A and club J on 23
February 2007, which eventually lead to a disciplinary sanction towards the
Claimant, by means of which he was suspended by the Competition
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Committee of the E Football Association for two official games with club A
and imposed a fine of 3,000.
6.
On 10 August 2007 and 6 September 2007, respectively, the Claimant filed a claim
against the Respondent and submitted that the unilateral termination of the
contract by the Respondent is unjustified and has occurred without any legitimate
reason.
7.
In this respect, the Claimant holds that the absences referred to as unjustified by the
Respondent were all justified, since the Claimant followed official summons,
supposedly approved by the Respondent, to play matches for the Association team of
the I (copies of two letters from the I Football Federation addressed to the General
Secretary of the U Football Association, and apparently copied to the Respondent,
dated 26 July and 24 August 2006, requesting that the Claimant be released to
participate in preliminary matches of his national team for the F Cup 2007 on 16
August 2006, 2 and 6 September 2006, 11 October 2006 as well as 15 November 2006
are on file) and left the country after the end of the season for holidays as all the
other (foreign) players did as well, respectively.
8.
Equally, and with regard to the allegedly unsatisfactory sporting results achieved by
the Claimant when being under contract with the Respondent, the Claimant says
that unsatisfactory sporting results are by no means whatsoever a reason for the
Respondent to unilaterally terminate an employment contract.
9.
The Claimant furthermore, and with regard to the third of the aforementioned
supposed reasons for the termination of the contract by the Respondent (cf. no I./5.
above), holds that he had already been penalised for the said incident and that,
contrary to the Respondent’s allegations, the incident in the aforementioned match
did not concern any racist behaviour at all, which could also be proven by the fact
that such behaviour would have been sanctioned much more severely.
10. Finally, the Claimant holds that all of the aforementioned and supposed reasons
which, according to the Respondent, allegedly justify the unilateral termination of
the contract, occurred a long period of time before the Respondent eventually
terminated the contract at the end of June 2007. In the light of the above, the
Claimant claims that the Respondent should be ordered to pay to him the amount of
USD 1,000,000, corresponding to the rest value of the contract concluded between
the parties, as compensation for breach of contract without just cause.
11. In its response to the claim, the Respondent rejected the Claimant’s claim. In
particular, the Respondent holds that the Claimant received a total remuneration of
USD 875,000 for the season 2006/2007, consisting of USD 500,000 and USD 200,000
which he received as a signing fee on 1 July 2006 and 2 January 2007 respectively, as
well as of the monthly salary of USD 25,000 each for the months of July 2006 to
January 2007, when the Claimant was eventually transferred to another club on a
loan basis.
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12. In particular, the Respondent pointed out that the Claimant left the Respondent and
the country without permission of the Respondent and that it also deemed it “rather
strange that the (Attachment 3 & Attachment 4) from I F.A was submitted to FIFA
just now” by the Claimant, and that “it was very difficult, if not impossible, for N to
establish the truth about what actually occurred during the period from 05/08/06 till
18/08/2006, from 27/08/06 till 29/08/2006, from 29/08/06 till 07/09/2006, from 07/10/06
till 13/10/2006 and from 01/06/07 till 24/06/2007”.
13. Furthermore, the Respondent asserted that the Claimant’s sporting results were
unsatisfactory since he only played for the Respondent in nine official league games
and only scored two goals. Equally, the Respondent holds that, due to the
unsatisfactory performance of the Claimant, he was transferred on loan to the club A
and that therefore the Respondent had to find an alternative to replace the
Claimant, i.e. it allegedly had to spend the additional amount of USD 660,000 to find
a replacement for the Claimant for the relevant period of time.
14. Moreover, the Respondent holds that, while being on loan with A, in the match
facing A and J Club on 23 February 2007, the Claimant had acted in a racist way
towards an I player, which eventually lead to a disciplinary sanction rendered by the
U Football Association, suspending the Claimant for two league games and imposing
a fine of 3,000.
15. Finally, the Respondent alleges that the Claimant left the country suddenly after
having played the last game of the season on 27 May 2007, however, without
contacting his employer to claim airline tickets for him and his family and without
leaving any contact details to arrange future communication.
16. On account of the foregoing, the Respondent is of the opinion that it had just cause
to terminate the contract with the Claimant and, hence, rejects the Claimant’s claim.
17. In his reply, the Claimant contests all the arguments of the Respondent as to why the
latter would have had just cause to terminate the contract. In particular, he says that,
even if the summary of the facts of the Respondent were assumed to be correct,
which, as a matter of fact, they are not at all, still none of the arguments put
forward by the Respondent would legitimize a unilateral termination by the
Respondent. This is, neither the absence of the Claimant from the Respondent in
order to represent the national team of I, nor the imposition of sanctions on the
Claimant for a lack of sportsmanship, or the allegedly unsatisfactory sporting results
of the Claimant during the duration of the contract would justify a unilateral
termination of the contract. Equally, and with regard to the allegation of the
Respondent according to which the Claimant had left the country without permission
at the end of the sporting season 2006/2007, the Claimant holds that he left the
country for holiday as all the other foreign players did. Therefore, and also bearing
in mind that at this specific moment the Claimant was not eligible to play for the
Respondent due to his loan to a third club, this fact does, according to the Claimant,
also not turn out to be an infringement of the contract.
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18. Furthermore, the Claimant holds that the Respondent only wanted to get rid of him
in order to save the money it would have had to pay to the Claimant under the
contract for the season 2007/2008, reason for which it constructed a framework of
reasons allegedly justifying a unilateral termination of the contract by the
Respondent.
19. To conclude with, the Claimant stipulates that due to the fact that the Respondent
unilaterally and without just cause terminated the contract, he should be entitled to
a compensation totalling in USD 1,125,000 [sic], consisting of USD 700,00 due as signon fee, USD 300,000 pertaining to the salary he should have received for the season
2007/2008 (12 monthly salaries amounting to USD 25,000 each) as well as
USD 150,000 of additional compensation (6 monthly salaries amounting to USD
25,000 each).
20. In its final comments, the Respondent, basically, reiterated its position previously
submitted to FIFA and asks the claim to be rejected since the Claimant allegedly
breached the contract.
21. Finally, the Claimant informed FIFA that he concluded an employment contract with
the club S, valid from 1 July 2007 to 24 June 2008 and providing for a total annual
salary of 1,700,000,000. The said contract was extended under the same terms for the
duration of 1 July 2008 to 30 June 2009.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber referred to art. 21 par. 2
and 3 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 August 2007, thus before the aforementioned Rules came into force
on 1 July 2008. Therefore, the Dispute Resolution Chamber referred to art. 18 par. 2
and 3 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2005; hereinafter: Procedural Rules) in
combination with art. 21 par. 2 and 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008) and
concluded that the 2005 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. In accordance with art. 24 par. 1 in combination with art. 22 b)
of the aforementioned Regulations, the Dispute Resolution Chamber shall
adjudicate on employment related disputes between a club and a player that have
an international dimension.
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3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation involving a player holding the nationality of the I and an
club E regarding a dispute between the parties in connection with an employment
contract.
4.
Subsequently, the Dispute Resolution 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 2008 edition of the Regulations on the Status and
Transfer of Players and, on the other hand, to the fact that the employment
contract at the basis of the present dispute had been concluded on 1 July 2006 and
that the Claimant’s complaint had been lodged with FIFA on 10 August 2007 and 6
September 2007, respectively. In view of the foregoing, the Dispute Resolution
Chamber concluded that the 2005 edition of the FIFA Regulations for the Status and
Transfer of Players (hereinafter: the Regulations) is applicable as to the substance of
the case at hand.
5.
Entering 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 July 2006 until 30 June 2008,
providing for the following payments:
a) for the first year of the contract a single payment of USD 500,000, payable
on 1 July 2006, a single payment of USD 200,000, payable on 2 January
2007 and 12 monthly payments amounting to USD 25,000 each, to be paid
to the Claimant on the first day following the month during which the
Claimant had provided his services to the Respondent;
b) for the second year of the contract a single payment of USD 500,000,
payable on 1 July 2007, a single payment of USD 200,000, payable on
2 January 2008 and 12 monthly payments amounting to USD 25,000 each,
to be paid to the Claimant on the first day following the month during
which the Claimant had provided his services to the Respondent.
6.
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 24 June 2007, at the moment when the Respondent had
submitted its termination letter to the Claimant.
7.
In this respect, the Chamber observed that the Claimant, in his claim, claimed from
the Respondent compensation for breach of contract amounting to the rest value
of the contract of USD 1,000,000 and, in his replica, compensation for breach of
contract amounting to USD 1,125,000.
8.
In this regard, 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
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opinion that the relevant employment contract had been terminated with just
cause. In this context, the Respondent argued, in particular, that it had just cause to
terminate the contract with the Claimant due to the fact that the latter supposedly
repeatedly left the Respondent without its permission, that the Claimant’s sporting
results were unsatisfactory and that, while being on loan with the club A, the
Claimant had acted in a racist way towards a player of another team, which finally
lead to disciplinary sanctions imposed on the Claimant by the U Football
Association.
9.
In view of the above, the Chamber went on to deliberate as to whether the alleged
offenses supposedly committed by the Claimant can be considered as a just cause
for the Respondent to prematurely terminate the employment relationship.
10.
As a preliminary remark, concerning the Respondent’s allegation according to
which the Claimant would repeatedly have left the E without the Respondent’s
consent, 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 provided the Chamber
with an excerpt of “the full Exit/Entry report which was obtained from the
Immigration Department at D International Airport”. In this context, the Chamber,
first of all and for the sake of good order, emphasised that the aforementioned
report was not translated into one of the four official FIFA languages, as stipulated
in art. 9 par. 1 e) of the Procedural Rules. Notwithstanding the foregoing, the
Dispute Resolution Chamber noted that, from the said report it could be noted that
the Claimant, between August 2006 and June 2007, apparently entered or exited
the E 10 times. In this regard, and concerning the above-mentioned report put
forward by the Respondent, the Chamber came to the conclusion that the said
document may well prove that the Claimant entered and left the country on several
occasions within the aforementioned period of time, but that it did not constitute
any evidence proving the fact that the Claimant had no permission to leave the
Respondent or the country on the relevant dates.
11.
In this context, the Chamber also emphasised that, on the one hand, the Claimant
had, in accordance with art. 12 par. 3 of the Procedural Rules, provided evidence
that some of his leaves were related to summons in order to represent his
association team, i.e. the national team of the I (cf. letters from the I Football
Federation addressed to the General Secretary of the U Football Association, dated
26 July and 24 August 2006, requesting that the Claimant be released to participate
in preliminary matches of his national team for the F Cup 2007), whereas, on the
other hand, the Respondent did not provide any documentary evidence
corroborating the fact that they would not have agreed to the Claimant’s
aforementioned leaves, such as for example a letter addressed to the Claimant
asking him, after he allegedly left the Respondent without permission, to
immediately return to the Respondent in order to reassume duty with it and,
consequently, fulfil his contractual obligations towards the Respondent.
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12.
In this regard, the Chamber also referred to the fact that, uncontestedly, after the
aforementioned supposed unauthorised leaves of the Claimant, the latter and the
Respondent continued their contractual relationship. This is, the Respondent, after
the Claimant had allegedly left the former without its consent, did never complain
about the Claimant’s leaves or inform him that it would not tolerate such behaviour
in future, but reintegrated him into its organisation and, eventually, transferred
him, on a loan basis, by means of a transfer agreement signed by the relevant
parties on 10 February 2007, to another club, A, in return of a transfer
compensation of USD 500,000. In other words, the Chamber was convinced that, by
behaving in the aforementioned way, the Respondent did, in the year of 2006, not
consider the Claimant’s leaves as unjustified and can therefore, half a year or more
after the alleged facts occurred, and after the contractual relationship was
continued, not terminate the contract with just cause due to the aforementioned
facts. Thus, the Dispute Resolution Chamber concluded that the Claimant’s alleged
leaves during the year of 2006 did not constitute a valid reason for the Respondent
to terminate the contract on 24 June 2007, in particular due to the time elapsed
between the events which, according to the Respondent, supposedly gave it the
right to terminate the contract and the date the termination was effectively
communicated to the Claimant (more than seven months later).
13.
Moreover, regarding the alleged unauthorised leave of the Claimant at the end of
the 2006/2007 season, the Chamber took due note of the following: According to
the Claimant, the last official match during the aforementioned season uncontestedly took place on 26 May 2007. After this, according to the Claimant, he, as did
all the other (foreign) players of the Respondent, left for his summer holidays and
did in any event not have the obligation to return to the Respondent, since he was
still on loan with A and therefore not even eligible to play for the Respondent. The
Respondent does neither contest the fact that the last match of the relevant season
took place on the aforementioned date nor the fact that all the other (foreign)
players of the Respondent would have been allowed to leave for their summer
holidays after the last match of the said season. Equally, the Respondent does not
contest that, at the time, the Claimant was not even eligible to play for the
Respondent, but that the latter only holds that the leave was unjustified because
the Claimant left without picking up the air tickets for him and his family and
without the Respondent’s permission. In this context, the members of the Dispute
Resolution Chamber underlined that, according to the loan contract, the Claimant
had been transferred to A on a loan basis until the end of the season 2006/2007 (cf.
art. 1 of the loan agreement concluded by and between A and the parties to the
present dispute, hereinafter: the loan agreement), and that the season 2006/2007
lasts until the end of June 2007, since art. 4 of the loan agreement stipulates that A
will pay the Claimant’s salaries up to and including the month of June 2007.
Therefore, the Claimant had no obligation to return to the Respondent until the
end of the season 2006/2007 as understood by the parties under the terms of the
loan agreement, i.e. until 30 June 2007 and, consequently, the Respondent did not
have any just cause to terminate the contract on 24 June 2007, i.e. 6 days prior to
the end of the loan of the Claimant.
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14.
On account of the above, the Chamber was satisfied that the Respondent’s
allegations according to which it had just cause to terminate the contract with the
Claimant due to the latter’s alleged unauthorised leaves had to be rejected.
15.
Furthermore, and turning its attention to the question as to whether the
Respondent had just cause to terminate the contract due to the allegedly
unsatisfactory sporting results of the Claimant, the Chamber referred to its wellestablished jurisprudence in accordance with which unsatisfactory sporting results
of a player can never constitute a just cause for a club to end the employment
relationship. In this respect, the Chamber recalled that the main obligation of the
player arising from an employment contract concluded with a club is not a certain
sporting success but only to act diligently and to carry out the job at the best of his
skills and abilities. This being said, the members of the Chamber concluded that the
alleged unsatisfactory sporting results of the Claimant did not constitute a just
cause for the Respondent to terminate the contract.
16.
Moreover, and reverting to the question as to whether the Respondent had just
cause to terminate the contract it had concluded with the Claimant due to the
events which occurred during a match between A and another club while the
Claimant was on loan with A, the Chamber pointed out that a player’s one-time
disciplinary misdemeanour could not constitute, per se, a valid reason for the
termination of a labour relationship. In particular, the Chamber emphasised that, in
connection with infringements of disciplinary standards such as the one in the
matter at hand, the party concerned should only have the right to terminate the
contractual relationship as ultima ratio, i.e. in case of repeated incidents of such
kind. Under such circumstances, a player committing such disciplinary infractions
would also have to be warned beforehand of the eventual consequences of his
actions if they were to be repeated.
17.
Equally, pertaining to the foregoing and with regard to the concrete circumstances
of the present case, the Chamber, on a side note, was eager to emphasise that the
Claimant, by being suspended by the U Football Association from participating in 2
matches and being fined 3,000 had already been sanctioned for his behaviour and
that, following the general legal principle ne bis in idem, in accordance with which
no individual shall twice be sanctioned for the same cause of action, he could not,
on a later stage, i.e. in June 2007, be sanctioned a second time by the Respondent
by being laid off. Also in this context, the Chamber pointed out that this incident
occurred during the time when the Claimant was under contract with A and
consequently did not affect the contractual relationship between the Claimant and
the Respondent and that, therefore, the latter did not sustain any damage in
connection with the aforementioned incident, reason for which, in any case, the
Respondent could not rely on this fact to unilaterally terminate the contract.
18.
As a consequence, taking into consideration that all 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
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Claimant and the Respondent must be considered as unilaterally terminated by the
Respondent without just cause.
19.
As a result, 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.
20.
With regard to the determination of the applicable amount of compensation, the
Chamber referred to the aforementioned provision of the Regulations (cf. art. 17
par. 1), in particular to the non-exhaustive enumeration of the objective criteria
which need to be taken into account.
21.
In continuation, the Dispute Resolution Chamber took due note of the fact that the
Claimant claims the remaining value of the contract, i.e. USD 1,000,000, as
compensation for breach of contract, plus USD 125,000 in terms of additional
compensation for the unjustified premature termination of the contract by the
Respondent. In this regard, the members of the Chamber acknowledged that the
Claimant had been rendering his services to the Respondent for seven months, that
he had then been transferred on loan to a third club for five months, in return of a
transfer fee of USD 500,000 paid by A to the Respondent, and that the relevant
employment contract still had approximately one year to run at the moment of its
termination.
22.
Furthermore, the members of the Chamber took note of the fact that the Claimant
had concluded an employment contract with the club S, for the period from 1 July
2007 until 24 June 2008, providing for a yearly salary of approximately USD 178,000,
and therewith enabling the Claimant to reduce his loss of income. On account of
the aforementioned circumstances, the Chamber concluded that not the entire
remaining contract value, but the amount of USD 822,000 was to be considered
reasonable and justified as compensation for the breach of contract committed by
the Respondent.
23.
On account of the above, the Dispute Resolution Chamber decided that the
Respondent must pay to the Claimant compensation for breach of contract in the
amount of USD 822,000 and that, therefore, the Claimant’s claim is partially
accepted.
24.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, G, is partially accepted.
2.
The Respondent, N, has to pay to the Claimant, G, the amount of USD 822,000
within 30 days as from the date of notification of this decision.
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3.
Any further claims lodged by the Claimant, G, are rejected.
4.
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.
5.
The Claimant, G, is directed to inform the Respondent, N, 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.
***
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Note relating to the motivated decision (legal remedy):
According to article 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
Encl.
CAS directives
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