Labour Disputes
Texto da decisão
ecision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 August 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Takuya Yamazaki (Japan), member
Philippe Diallo (France), member
Damir Vrbanovic (Croatia), member
on a claim presented by the player,
B,
as Claimant
against the club,
S,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 September 2008, the player, B (hereinafter: the Claimant or Player), and the club, S
(hereinafter: the Respondent or Club), signed an employment contract (hereinafter: the
contract) valid as from the date of signature until 30 June 2009.
2.
According to the contract the Claimant was entitled to receive, inter alia:
- EUR 60,000 down payment,
- EUR 10,000 monthly salary to be paid at the end of each month,
- a family car,
- a furnished apartment,
- four flight tickets (2 adults and 2 children, country X – K – X).
3.
Art. 20 of the contract states that: “In the event where the player is found guilty of
violating the rules and laws of the State of K or articles of this contract, the Club may
terminate the contract, without prejudice to the right of the First Party to claim
compensation for salaries, advance payment of the contract until the date of
cancellation of the contract.”
4.
On 19 February 2009, the Claimant signed an employment contract with the club, C,
valid until 31 December 2010, according to which the player was to receive, inter alia, a
monthly salary of 8,385 (EUR 4,290).
5.
On 8 April 2009, the Claimant lodged a complaint before FIFA against the Respondent
for breach of contract without just cause and claimed the payment of the total amount
of EUR 70,000 plus 5% interest p.a., made up of the following amounts:
- EUR 10,000 as outstanding salary for December 2008,
- EUR 60,000 as compensation for the salaries for January until June 2009.
6.
Furthermore, the Claimant claims the costs for the hotel accommodation for the period
of 30 December 2008 until 20 January 2009 in the amount of 770 as well as the flight
costs.
7.
In his arguments, the Claimant pointed out that on 6 December 2008 he left on
vacation to country B, which was approved by the senior coach and the Respondent’s
director, and in country B he was informed by phone that the Respondent was no
longer interested in his services. Therefore, he flew back to country K on his own
expenses and notified the Respondent shortly after his arrival by letter on 2 January
2009 that he has returned from his vacation. Furthermore, he requested the Football
Association K (FAK), with a letter dated 5 January 2009, to interfere with the problems
he is having with the Respondent and informed the Football Association K about the
outstanding salary of December 2008 as well as the flight ticket he has paid himself.
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8.
Moreover, the Claimant stated that on 18 January 2009 he received a letter from the
Football Association K, in which the Respondent wished to terminate the employment
relationship as per a Respondent’s letter on 7 January 2009. Since the Respondent was
not interested in the Claimant’s services after his return from his vacation, the Claimant
had to rent a hotel room to fulfil his contractual obligations towards the Respondent.
9.
In its reply, the Respondent rejected the claim and argued that it terminated the
contract with the Claimant with just cause, since the Claimant did not fulfil his
obligations towards the Respondent. The Respondent explained that the Claimant left
on vacation from 9 December 2008 until 27 December 2008 by only notifying the
Respondent’s director, however, without having a written permission from the
Respondent’s administration board.
10.
In addition, the Respondent stated that the Claimant received several warnings during
matches, offended the referee and was absent during trainings alleging that he was
injured without submitting a medical report. Therefore, the Respondent deemed that
the Claimant damaged its reputation and decided on 13 December 2008 in a meeting to
terminate the employment contract signed between the parties and to claim back EUR
60,000 of the down payment that has been received by the Respondent.
11.
Finally, the Respondent mentioned that the Football Association K held a meeting with
the players that lodged a claim against it to find an amicable settlement which was
unsuccessful since the Claimant insisted to receive the outstanding salaries and did not
want to pay back the down payment. Thereafter, the Claimant left the country without
permission. Furthermore, the Respondent provided a copy of a hotel voucher valid for
three days as of 23 September 2008.
12.
The Respondent’s position has been forwarded to FIFA by the Football Association K, in
which the Football Association K stated that it discussed the case of the players that
lodged a claim against the said club with its legal counsel. The legal counsel’s opinion in
the present matter was in favour of the players. The Football Association K further
stated that after having contacted the Respondent by a letter on 17 February 2009, the
Respondent apparently insisted on its position and therefore no amicable settlement
could be found between the Claimant and the Respondent.
13.
In his replica, the Claimant maintained his previous position and pointed out that no
amicable settlement between the parties could be found, because the Respondent
refused to comply with the Football Association K’s legal counsel’s proposition. In
addition, the Claimant stated that he left on vacation on 6 December 2008 like the
other players and not on 9 December 2008 as stated by the Respondent. The Claimant
also added, that the “leave application form” provided by the Respondent is for
another player. Furthermore and with regard to the allegations of the club about the
Claimant’s behaviour during matches and training, the Claimant explained that this
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behaviour is not uncommon in football and that it did not cause a serious damage to
the Respondent’s reputation and cannot justify a unilateral termination of the
employment contract.
14.
With regard to the unilateral termination of the employment contract, the Claimant
stressed that the letter sent by the Football Association K on behalf of the Respondent
indicates that the employment contract is terminated by a letter of 7 January 2009.
However, the Claimant explained that the letter of 7 January 2009 was only sent by the
Respondent to the Football Association K and he was informed by the Football
Association K only on 18 January 2009. Therefore, the Claimant argued that the
employment contract was terminated on 18 January 2009. Moreover, the Claimant
explained that the hotel voucher presented by the Respondent, which was valid for a
three day stay does not prove that he was provided with an apartment during his stay
in country K. As a result, the Claimant deemed that the club’s arguments are unfounded
and that they lack of evidence.
15.
In spite of having been invited by FIFA to do so, the Respondent has failed to respond
to the player’s replica.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the 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 8 April 2009.
Consequently, the 2008 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 (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 2009) 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.
3.
In continuation, 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 (editions
2008 and 2009), and considering that the present claim was lodged on 8 April 2009,
the 2008 edition of the regulations (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
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4.
The competence of the Dispute Resolution Chamber and the applicable regulations
having been established, and entering into the substance of the matter, the
Chamber started by acknowledging the above-mentioned facts as well as the
documentation contained in the file.
5.
In this regard, the Chamber duly noted that the parties signed an employment
contract on 1 September 2008 valid until 30 June 2009 and that the Respondent had
terminated the employment contract in December 2008. Equally, the Chamber
acknowledged that, according to the said contract, the player was entitled to a
monthly salary of EUR 10,000, to be paid at the end of each month, a down
payment of EUR 60,000, a family car, a furnished apartment and four tickets (2
adults and 2 children) country B-K-B.
6.
In this respect, the Chamber noted, on the one hand, that the Claimant alleged that
the Respondent terminated the contract without just cause and that he asks to be
awarded payment of the total amount of EUR 70,000 plus 5% interest p.a., made up
of EUR 10,000 as outstanding salary for December 2008 and EUR 60,000 as
compensation for breach of contract corresponding to monthly salaries until the
date of expiry of the employment contract. Additionally, the Claimant claimed that
the Respondent should reimburse him the hotel accommodation costs in the
amount of 770 for the period of 30 December 2008 until 20 January 2009 as well as
the flight costs.
7.
The Chamber remarked that the Respondent, on the other hand, argued that it
terminated the contract with just cause, since the Claimant did not fulfil his
contractual obligations towards it, by leaving on vacation without having a written
permission, receiving several warnings during matches, offending the referee and
being absent during trainings.
8.
The Chamber highlighted that the underlying issue in this dispute, considering the
claim of the player, was to determine whether the employment contract had been
unilaterally terminated with or without just cause by the club. The Chamber also
underlined that subsequently, if it were found that the employment contract was
terminated without just cause, it would be necessary to determine the financial
and/or sporting consequences for the party that is to be held liable for such
termination of the relevant employment contract.
9.
In this respect, the members of the DRC turned their attention to the argument of
the player that the club terminated the employment contract without just cause
while he was on vacation in B and was no longer interested in the player’s services
without having just cause.
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10.
The club for its part had put forward several allegations regarding the Claimant’s
behaviour, arguing that the Claimant, received several warnings during matches,
offended the referee and was absent during trainings alleging that he was injured
without submitting a medical report. In this respect, the Chamber took note of the
Claimant’s position, who considered that such behaviour was not uncommon in
football and that it did not damage the club’s reputation as the latter alleged.
11.
In continuation, the Chamber duly noted that the Claimant alleged that on 6
December 2008 he left on vacation to B, after receiving the approval by the senior
coach and the Respondent’s director. Furthermore, the Claimant held that, during
his stay in B, he was informed by phone that the Respondent was no longer
interested in his services. In continuation, the Claimant alleged having received on
18 January 2009 a letter from the Football Association K (FAK), in which the
Respondent wished to terminate the employment relationship as per a
Respondent’s letter on 7 January 2009.
12.
The Chamber, took note, on the other hand, of the allegations of the Respondent,
who held that the Claimant left on vacation on 9 December 2008 and that he only
notified the Respondent’s director, without however having a written permission
from the Respondent’s administration board.
13.
In this respect, the Chamber acknowledged that the Claimant contested the day of
his departure for holidays as well as the day on which the contract had to be
considered as terminated. In fact, the Claimant held that he left on vacation on 6
December 2008 and not on 9 December 2008, as alleged by the Respondent.
Moreover, with regard to the allegations of the Respondent about his behaviour,
the Claimant argued, inter alia, that such behaviour cannot justify a unilateral
termination of the employment contract.
14.
Furthermore, the Chamber noted that the Respondent never provided FIFA with its
final position, although having been invited to do so. Therefore, the Chamber
deemed that, by doing so, the Respondent renounced to its right to defence and
accepted the latest allegations of the Claimant according to art. 9 par. 3 of the
Procedural Rules.
15.
In this respect, considering the principle of the burden of proof (cf. art. 12 par. 3 of
the Procedural Rules), according to which a party claiming a right on the basis of an
alleged fact shall carry the burden of proof, the Chamber came to the conclusion
that some of those allegations regarding the Claimant’s conduct had not been
supported by any documentary evidence by the Respondent.
16.
In this respect, the Chamber furthermore deemed it appropriate to recall that the
alleged unsatisfactory performance of a player could, in any case, not constitute a
just cause to prematurely terminate an employment contract, since such judgement
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is solely upon the discretion of the club. Equally, any such clause in an employment
contract between a club and a player would not be acceptable since it would leave
the player dependent upon a potentially arbitrary judgement of the club.
Consequently, such clause would have to be considered potestative and, hence,
void.
17.
Therefore, the Chamber came to the conclusion that it had no other alternative but
to reject the allegations on the Claimant’s conduct due to lack of evidence by the
Respondent, which could not justify an early termination of the contract with just
cause.
18.
As a consequence of the foregoing considerations, the Chamber decided that, in the
absence of any convincing evidence to the contrary, it had to conclude that the
Respondent terminated the employment contract, unilaterally and without just
cause in January 2009.
19.
Having established that the Respondent is to be held liable for breach of contract
without just cause, the Chamber decided that the Respondent is liable to pay
compensation to the Claimant for breach of contract in accordance with art. 17 par.
1 of the Regulations.
20.
In continuation, the members of the Chamber considered that a careful reading of
the applicable provision, i.e. art. 17 par. 1 of the Regulations provides the key to
assess the amount of compensation due by the Respondent to the player.
21.
The Chamber clarified that the criteria listed therein are, however, not exhaustive
and that each request for compensation for breach of contract has to be assessed on
a case-by-case basis.
22.
According to 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 up
to a maximum of five years, and depending on whether the contractual breach falls
within the protected period.
23.
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
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
regard, the Chamber established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
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24.
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.
25.
On this basis, the members of the Chamber once more highlighted that the early
termination of the employment contract occurred shortly after the entry into force
of such employment contract. The Chamber deemed that it should consider this fact
in determining the amount of compensation to be paid by the Respondent.
26.
Equally, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account inter alia, in line with art. 17 par. 1
of the Regulations, the remuneration due to the Claimant in accordance with the
employment contract as well as the time remaining on the employment contract, as
well as the professional situation of the Claimant after the early termination
occurred.
27.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract until
30 June 2009. Consequently, the Chamber concluded that the amount of EUR 70,000
(i.e. salary of December 2008 and compensation in the amount of EUR 60,000)
serves as the basis for the final determination of the amount of compensation for
breach of contract.
28.
Indeed, on 19 February 2009 the player, found employment with the club C
(hereinafter: C), valid until 31 December 2010. According to the pertinent
employment contract, which has been made available by the player, the Claimant
was entitled to receive, inter alia, a monthly salary of 8,385.
29.
Consequently, in accordance with the constant practice of the Dispute Resolution
Chamber and the general obligation of the claimant to mitigate his damages, such
remuneration under the new employment contract shall be taken into account in
the calculation of the amount of compensation for breach of contract.
30.
In view of all the above, and the circumstances of the case at hand, the Chamber
concluded that the amount of compensation for breach of contract without just
cause to be paid by the Respondent to the Claimant is EUR 42,840, which is to be
considered reasonable and justified as compensation for breach of contract, taking
into consideration the specificities of the case at hand.
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31.
Finally, the Chamber turned its attention to the Claimant’s claim regarding the
reimbursement of the flight costs and pointed out that in accordance with its wellestablished jurisprudence, since no specific amount was mentioned in the
employment contract in relation to the Claimant’s flight costs, the deciding
authority was not in a position to determine the amount. Consequently, the
Chamber decided to reject the Claimant’s claim for the reimbursement of flight
costs.
32.
Furthermore, the Chamber took due note of the Claimant’s claim regarding the
reimbursement of the costs for the hotel accommodation, which had allegedly had
to pay himself at his return from his vacation, since the Respondent did not provide
him with an apartment as established in the contract. In this regard, the Chamber
underlined that the employment contract states that the Respondent provides the
Claimant with a furnished apartment, and that the Claimant has provided a copy of
the hotel receipt for the period of 30 December 2008 until 20 January 2009 in the
amount of 770.
33.
Therefore, the Chamber deemed it appropriate to conclude that the Respondent
has to reimburse the Claimant the amount of EUR 2,100, being the costs for the
hotel accommodation, which he paid upon his return to K.
34.
In view of all of the above-mentioned considerations, the Dispute Resolution
Chamber decided that the claim of the Claimant is partially accepted and, in this
regard, reiterated that the Respondent must pay the amount of EUR 12,100 to the
Claimant, consisting of EUR 10,000 as outstanding salary of December 2008 and EUR
2,100 as reimbursement of the costs for the hotel accommodation, together with
interest at the rate of 5% as of 1 January 2009 until the date of effective payment.
Additionally, the Respondent must pay the amount of EUR 42,840 as compensation
for breach of contract.
35.
Finally, the Chamber concluded its deliberations by deciding that any further claim
lodged by the Claimant is rejected.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The Respondent, S, has to pay to the Claimant outstanding remuneration in the amount
of EUR 12’100, plus interest at the rate of 5% p.a. as of 1 January 2009 until the date of
effective payment, within 30 days as from the date of notification of this decision.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in the
amount of EUR 42’840 within 30 days as from the date of notification of this decision. In
the event that this amount of compensation 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.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers are not paid within the stated deadlines, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee for its consideration
and a formal decision.
5.
Any further claim filed by the Claimant is rejected.
6.
The Claimant, B, is directed to inform the Respondent, S, immediately and directly of
the account number to which the remittances are 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:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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