Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 June 2011,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
G,
as Claimant
against the club,
A,
as Respondent
regarding an employment-related dispute between the parties
I. Facts of the case
1. On 1 June 2010, the player, G (hereinafter: player or Claimant), and the club, A
(hereinafter: club or Respondent), signed an employment contract valid as from the
date of its signature until 30 May 2012.
2. In accordance with the employment contract, for the 2010-2011 season, the player was
entitled to receive inter alia the total amount of EUR 20,000 in ten monthly equal
installments of EUR 2,000 as of 31 August 2010 (payable on the 31st day of each month).
Furthermore, for the 2011-2012 season, the player was entitled to receive inter alia the
total amount of EUR 20,000 in ten monthly equal installments of EUR 2,000 as of 31
August 2011 (payable on the 31st day of each month).
3. Moreover, in accordance with the employment contract, the club was obliged to
provide the player with an accommodation for a rent of not more than EUR 400 per
month, as well as two return air tickets for each football season.
4. Furthermore, art. 6 of the employment contract stipulated that at the end of the season
2010-2011 i.e. 30/5/2011, “the Employer will have the right to end the contract of
employment with the Employee by notifying the latter by correspondence, and the
Employee will have no right to damages or claims”.
5. In addition, on 1 July 2010, the player and the club signed a supplementary agreement,
in accordance with which the player, for the 2010-2011 season, was entitled to receive
inter alia the total amount of EUR 15,000: EUR 3,000 to be paid on 15 July 2010 and EUR
12,000 payable in ten monthly installments of EUR 1,200 each, starting on 31 August
2010 (payable on the 31st day of each month). Furthermore, for the 2011-2012 season,
the player was entitled to receive inter alia the total amount of EUR 25,000: EUR 5,000
to be paid on 15 July 2011 and EUR 20,000 payable in ten monthly installments of EUR
2,000 each, starting on 31 August 2011 (payable on the 31st day of each month).
6. On 26 January 2011, the player lodged a claim against the club before FIFA claiming
that, on 17 January 2011, the Respondent had terminated the employment contract
without just cause. In this connection, the player asked to be awarded the payment of
the following amounts:
1. Outstanding salary:
a. EUR 9,600 corresponding to the salaries for October, November and December
2010;
b. EUR 1,755 corresponding to 17 days of salary for January 2011;
c. EUR 1,200 corresponding to the rent for October, November and December 2010;
d. EUR 220 corresponding to 17 days of rent for January 2011.
e. EUR 786,17 corresponding to an air ticket.
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2. Compensation:
a. EUR 69,425 as compensation for breach of contract relating to the remaining
salaries and rent for the period as from 17 January 2011 until 30 May 2012;
b. EUR 10,000 as compensation for the loss of fringe benefits, bonuses and moral
damages.
7. Additionally, the player is asking for sporting sanctions to be imposed on the club, due
to the alleged breach of contract during the protective period.
8. In his claim, the player explains that the club had failed to remit his monthly salary and
rent for October, November and December 2010 as well as an air ticket. Furthermore,
after his return to the club from his Christmas holidays, the club had proposed to
terminate the employment contract and to pay him an amount of money corresponding
to three and half months’ salary as well as two months’ rent, which proposal he refused.
9. The player asserts that, on 3 January 2011, the club informed him not to attend the
club´s training sessions during seven days and he was furthermore granted the
possibility to train with another club during this period.
10. The player further points out that, on 5 January 2011, the club suggested to him in
writing that he could freely look for another team in the January transfer window and
that no compensation would be asked for his services from the new club. Furthermore,
the relevant letter stated that neither party, club nor player, would be entitled to claim
any future compensation in case of his transfer.
11. Finally, the player claims that, on 17 January 2011, the club presented him a termination
letter, putting an end to their employment relation, on the basis of alleged repeated
disciplinary infringements, underlining the unjustified absence of the player from the
training session of 16 January 2011.
12. In this respect, the player highlights that no disciplinary proceedings had been opened
against him and states that even in the hypothetical case of him missing a training
session, this would still not be a valid and justified reason to put an end to the
employment relation between the parties.
13. In reply to the claim, the club rejects the player´s allegation and fundamentally
underlines article 6 of the employment agreement, which states that at “the end of the
period i.e. 30/5/2011, the Employer will have the right to end the contract of
employment with the employee by notifying the latter by correspondence and the
employee will have no right to damages or claims”. Therefore on the basis of article 6,
the player has no rights to any damages.
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14. Moreover, the club states that the player was handed 7 days of obligatory holidays, as
from 3 January 2011 until 10 January 2011, because of misbehaviour towards the club´s
coach and after this period of time the player showed a total indifference towards the
club and even missed training sessions.
15. Subsequently, several remarks were allegedly made to the player regarding his
behaviour but to no avail and therefore, on 17 January 2011, the club sent a letter to
the player, notifying him of the termination of the employment contract based
principally on the missed training session of 16 January 2011.
16. The club further claims that the player did not follow the procedures outlined in the
Football Association´s C Regulations and more specifically in art. 19 1B. That is, the
player did not file his petition thirty days after being notified of the contract
termination.
17. Finally, the club points out that the player hid the fact that he was employed by
another team and, consequently, did not suffer any damages on the basis of the
contract termination.
18. In reply to FIFA´s request, on 6 April 2011, the player indicated that he had not signed
any other employment contract and thus was not in receipt of any other remuneration.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 26 January 2011, thus after
1 July 2008. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural
Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 of the Procedural
Rules).
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 2010) 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 player and a
club.
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3. Furthermore, the Chamber 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 the Regulations on the Status and Transfer of Players (edition 2010) and
considering that the present claim was lodged on 26 January 2011, the 2010 edition of
the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable as to the substance of the case at hand.
4. Entering into the substance of the matter, the Chamber acknowledged the facts of the
case as well as the documentation contained in the file, and in view of the
circumstances of the matter, turned to the question as to whether the club had
committed a unilateral breach of the employment agreement without just cause as
claimed by the Claimant. If so, as a next step, the Chamber was to decide on the
consequences of such breach of contract.
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 by the Respondent on 17 January 2011, at the moment when the
Respondent had submitted its termination letter to the Claimant.
6. 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 pointing out inter alia that the Respondent was in delay of payment of his
salary and rent as of October 2010. On the other hand, the Respondent was of the
opinion that the relevant employment contract had been terminated with just cause, in
particular, alleging that the player had misbehaved, was handed 7 days of obligatory
holidays and after this period had showed total indifference towards the club and even
missed training sessions. The Respondent further held that it duly terminated the
contract in accordance with art. 6 of the employment agreement and that,
consequently, the player had no right to any damages.
7.
In this context, the Chamber firstly focused its attention on said art. 6 of the
employment agreement, which was valid until 30 May 2012, which reads as follows: “at
the end of the period i.e. 30/5/2011, the Employer will have the right to end the
contract of employment with the Employee by notifying the latter by correspondence
and the Employee will have no rights to any damages”.
8. In this regard, the Chamber deemed it important to highlight that art. 6 of the
employment agreement, in accordance with which the Respondent would have been in
the position to unilaterally terminate the employment contract at the end of the first
season, is not acceptable due to its potestative character. Indeed, such clause appears to
be unilateral and to the benefit of the Respondent only, who, according to the wording
of the said clause, was able to terminate the contractual relation with the Claimant at
its sole discretion and without any justification.
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9. Therefore, the Chamber agreed that such a clause is unacceptable and could not be
validly invoked as a legal basis for a unilateral termination of the employment contract.
Consequently, the Chamber rejected the Respondent´s argument in this respect.
10.
In view of the above, the Chamber subsequently went on to deliberate as to whether
the player´s alleged misbehaviour, indifference and missed training, which are invoked
by the Respondent in its defence, can be considered as a just cause for the Respondent
to prematurely terminate the employment relationship.
11.
In this context, whilst referring to 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, the Chamber deemed it fit to highlight that the Respondent had not presented
any documentary evidence corroborating its allegations regarding this particular point.
12.
Notwithstanding the foregoing consideration, the Chamber pointed out that the
player´s alleged misbehaviour and missing a training session could not constitute, per se,
a valid reason for the termination of an employment contract. Only a breach or
misconduct which is of 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 an ultima ratio.
13.
Moreover, the Chamber took into account that, according to the Claimant, his salaries
and rent for October, November and December 2010 had remained unpaid and that the
club had suggested to him in writing that he could freely look for another team in the
January 2011 transfer window (cf. points I./9. and I./10. above). In this respect, the
Chamber noted that the Respondent has not contested such particular allegations.
14.
On account of the above-mentioned circumstances, the Chamber deemed that the
Respondent had already acted in breach of the employment contract prior to
terminating it via the letter dated 17 January 2011 by failing to remit the Claimant´s
salaries during a considerable amount of time (3 months).
15.
Taking into consideration all of the above, the Chamber decided that the Respondent
had terminated the employment contract unilaterally and without just cause.
16.
Having established that the Respondent is to be held liable for the early termination of
the employment contract without just cause, the Chamber focussed its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
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Regulations, the Chamber decided that the Claimant is entitled to receive from the
Respondent an amount of money as compensation of breach of contract in addition to
any outstanding payments on the basis of the relevant employment contract.
17.
First of all, the Chamber reverted to the Claimant´s financial claim, which includes
outstanding remuneration of EUR 11,355 relating to monthly salaries as from October
2010 until 17 January 2011 as well as outstanding rental payments of EUR 1,420 relating
to October 2010 until 17 January 2011.
18.
The members of the Chamber decided that the Respondent is liable to pay the
Claimant´s outstanding salaries and rent relating to the period of time between October
2010 and 17 January 2011 as the Respondent had failed to demonstrate that it had paid
such remuneration. In fact, the Respondent had not even contested such particular
allegations.
19.
In addition, the Chamber took due note of the Claimant´s claim regarding the
reimbursement of his flight ticket, which he allegedly had to pay himself. In this regard,
the Chamber underlined that the employment contract states that the Respondent
would cover the costs for two return air tickets, and that the Claimant indeed appears
to have paid one ticket himself, as evidenced by a receipt presented by the Claimant.
Therefore, the Chamber decided that the Respondent must reimburse the Claimant the
amount of EUR 786,17 in order to cover the cost of his flight ticket, which he had to pay
himself.
20.
Consequently, taking into account the documentation remitted by the Claimant to
substantiate his claim and the fact that the employment contract was considered
terminated as of 17 January 2011, the Chamber decided that the Respondent is liable to
pay the Claimant the amount of EUR 13.561,17 relating to payments due to the
Claimant as from October 2010 up to 17 January 2011 in accordance with the
employment contract.
21.
In continuation, the Chamber focussed its attention on the calculation of the amount of
compensation for breach of contract in the case 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 Claimant under the existing contract and/or the new contract, the time remaining
on the existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
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22.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of compensation
payable by the contractual parties in the event of breach of contract. In this regard, the
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
23.
As a consequence, the members of 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. The
Chamber recalled that the 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.
24.
The members of the Chamber then turned their 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.
25.
In accordance with the employment contract signed by the Claimant and the
Respondent, the Claimant was entitled to receive remuneration amounting to EUR
59,245 as from 18 January 2011 until 30 May 2012. Consequently, the Chamber
concluded that the amount of EUR 59,245 serves as the basis for the final
determination of the amount of compensation for breach of contract.
26.
In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation for
breach of contract in connection with the player’s general obligation to mitigate his
damages.
27.
The Chamber noted that, according to the Claimant´s declaration, he had not been able
to sign an employment contract with another club during the relevant period of time.
However, and regarding the matter at hand, the Chamber deemed it fit to point out
that after the early termination of the contract on 17 January 2011, the Claimant had
opportunities to find a new club given that at least two transfer periods had been open
until today and thus to mitigate his loss to some extent.
28.
Consequently, on account of all the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the Claimant´s
claim and that the Respondent must pay not the entire residual value of the
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employment contract but the amount of EUR 45,000, which was to be considered
reasonable and proportionate as compensation for breach of contract in the case at
hand.
29.
In conclusion, the Chamber decided to partially accept the claim of the Claimant and
that the Respondent is liable to pay the total amount of EUR 58,561.17 to the Claimant,
consisting of EUR 13,561.17 relating to outstanding salaries and EUR 45,000 as
compensation for breach of contract.
30.
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, A, has to pay to the Claimant the amount of EUR 58,561.17 within
30 days as from the date of notification of this decision.
3.
In the event that this amount is not paid within the stated time limit, interest at the
rate of 5% p.a. will fall due as of expiry of the above-mentioned time limit and the
present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
for consideration and a formal decision.
4.
Any further claim lodged by the claimant is rejected.
5.
The Claimant is directed to inform the Respondent 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 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
Encl.: CAS directives
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