Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 29 August 2011,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player,
U,
as Claimant
against the club,
P,
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 1 December 2010, the player U (hereinafter: the player or the Claimant), and the
club P (hereinafter: the club or the Respondent), signed an employment contract
(hereinafter: the contract) valid from the date of signature until 31 August 2011.
2.
According to art. 3 par. 1 of the contract, the Claimant was, inter alia, entitled to a
monthly salary in the amount of USD 6,000, payable on the 18th day of every month,
as well as a round-trip flight ticket and bonuses, according to the club’s rules and
regulations.
3.
As specified in art. 5 of the employment contract, “in the event that the footballer
does not meet the qualification requirements as per the club’s requirement via tests
organized by the club, or does not meet the health and physical conditions
(determined by an authorized clinic entity) or the footballer has not shown his full
ability in efficiency manner as per training board’s assessment, then the club shall
have the right to terminate the contract with the footballer in accordance with the
labour law”.
4.
On 1 May 2011, P terminated the employment contract with the Claimant, by
means of a termination agreement, according to which the parties shall have no
obligations towards each other.
5.
On 7 May 2011, the player lodged a claim in front of FIFA against the club, alleging
that the club terminated the contract without just cause and claiming the amount
of USD 24,000 for the salaries of May until August 2011.
6.
In his arguments, the Claimant states having been pressured to terminate the
contract – to which he refused – and to leave the accommodation provided by the
club, having also feared for his personal safety during the course of this process.
7.
The Claimant further states having been informed that the termination contract
shall be signed by the club only and forwarded to the Football Federation V, in
disregard of his refusal.
8.
In its response, the Respondent argues that it terminated the contract with just
cause and without any compensation, in accordance with art. 5 of the contract and
labour law of V and thus the player was free of contract as of 1 May 2011.
9.
Furthermore, the Respondent provided a copy of a letter dated 18 April 2011, in
which the club’s head coach considered the player’s performance unsatisfactory –
“this player shall be normal in regard of technique and qualification, shall fail to
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meet requirements and expectations of the team, and shall have just little
contribution to the team” – and suggested the player’s replacement.
10. Finally and based on the labour law of V, the club stressed that it has the right to
unilaterally terminate the contract without compensation if the player is considered
underqualified. Further, the club states that the contract signed with the player was
a seasonal contract, since it was signed for a period of less than a year. In such cases,
the termination shall come into force three days after the relevant party has been
informed, which in the present case is on 4 May 2011.
11. In his replica, the Claimant states having always complied with the contract and
having passed all medical exams, as well as having actively participated in training
and competitions. Therefore, he does not agree with any sort of punishment
applied either by the club or by the Football Federation V.
12. The Claimant stressed that the club has not paid his salaries since May 2011,
prohibited him from taking part in trainings and did not register him for the second
round of the V League, having registered another player instead.
13. With regard to the Labour Law of V, the Claimant stressed that insufficient
professional requirements are not listed as one of the valid reasons for unilateral
termination of a contract.
14. Moreover, the player states that the termination was sent to him only on 4 May
2011 and, therefore, outside the appropriate time-period for the notification,
namely three days prior to the termination. A copy of the termination letter dated
8 May 2011 was sent to FIFA but not to the player. According to the
aforementioned letter, he reacquired the status of free player as of 1 May 2011.
However, the Claimant states having played for the club against D on this very date.
15. On what concerns his seasonal contract, the Claimant submits a copy of the Labour
Code of V, according to which the employer must give the employee at least a
three-day notice with a served letter stating the reasons for the termination (art. 38
par. 3 of the Labour Code of V). In addition, there is no stipulation in the Labour
Code of V, according to which the termination of a seasonal contract shall come
into force three days subsequent to its notification.
16. Art. 41 par. 1 of the aforementioned law stipulates that, in case a club terminates a
contract without just cause, the latter shall be re-established and the player shall be
granted a compensation equal to his salary for the period he was unemployed, plus
at least two months’ salary and bonuses, if any.
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17. Therefore, the Claimant requests that the club should, at least, compensate him
with three months of salary, i.e. USD 18,000, plus bonuses and a return flight ticket.
18. In its final response, the Respondent maintains its position and rejects the player’s
claim.
19. According to the player, he did not sign any new employment contract as of 1 May
2011 until 31 August 2011.
II. Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 7 May 2011. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that, in accordance with art. 24 par. 1 and par. 2 in conjunction with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010)
(hereinafter: the Regulations), he is competent to decide on the present litigation,
which concerns an employment-related dispute with an international dimension
between a player of N and a club from V.
3.
Furthermore, the DRC judge analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, he confirmed that, in
accordance with art. 26 par. 1 and par. 2 of the Regulations (edition 2010) and
considering that the present matter was submitted to FIFA on 7 May 2011, the 2010
edition of said Regulations is applicable to the present matter as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the judge entered into the substance of the matter. In doing so, he
started to acknowledge the facts of the case as well as the documents contained in
the file.
5.
In this respect, the DRC judge acknowledged that it was undisputed by the parties
that they had signed an employment contract on 1 December 2010, in accordance
with which the player was entitled to receive, inter alia, monthly remuneration in
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the amount of USD 6,000, payable on the 18th day of every month, a round-trip
flight ticket and bonuses, according to the club’s rules and regulations.
6.
The DRC judge further noted that the Claimant claims that, on 1 May 2011, the club
terminated the contract without just cause, for not only has it failed to present any
valid reasons for the termination, but also disregarded the player’s refusal to sign
the termination agreement, forwarding it to the Football Federation V. According
to the player, the termination also does not comply with the requirements of the
labour law of V and, therefore, shall not be considered as valid.
7.
In this respect, the player requests that the club should proceed with the payment
of compensation for the period of May until August 2011 in the amount of USD
24,000, or subsidiarily at least USD 18,000, plus bonuses and a return flight ticket.
8.
The DRC judge equally noted that the Respondent states having terminated the
contract with just cause and is not to be held liable to pay compensation, in
accordance with art. 5 of the contract and with the labour law of country V, which
allegedly allow the termination of a contract without compensation, should the
player be considered professionally underqualified. According to the Respondent,
the termination was not only legal, but was also communicated in a timely manner,
considering the provisions of the labour law of country V.
9.
Having established the aforementioned, the DRC judge deemed that the underlying
issue in this dispute, considering the claim of the player and the allegations of the
club, was to determine whether the employment contract had been unilaterally
terminated with or without just cause by the club, and which party was responsible
for the early termination of the contractual relationship in question. The DRC judge
also underlined that, subsequently, if it were found that the employment contract
was terminated by the Respondent without just cause, it would be necessary to
determine the financial and/or sporting consequences for the party that caused the
unjust breach of the relevant employment contract.
10. In view of the above, the DRC judge firstly noted that the Respondent bases the
termination of the employment contract on its art. 5 and on unspecified articles of
the Labour Code of country V.
11. In this respect, the DRC judge recalled the wording of art. 5 of the aforementioned
contract, which stipulates that, in case the player fails to meet the technical and
physical requirements set forth by the club, either by not passing the exams
organized by the latter or by not performing his duties properly, as per an
assessment of the “training board”, the club shall have the right to terminate the
contract with the player, in accordance with the Labour Code of country V.
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12. In that regard, and before analysing the contents of the aforementioned provision
of the contract, the Chamber recalled the general principle of burden of proof
stipulated in the 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, and
pointed out that the Respondent only submitted a statement of the coach with
regard to the player’s performance in support of its allegations, according to which
the Claimant “shall be normal in regard of technique and qualification, shall fail to
meet requirements and expectations of the team, and shall have just little
contribution to the team. […] I hereby kindly advise management of the Cement
Company of P and club P to replace player U by a better qualification player who
can satisfy requirements of our team”.
13. The DRC judge then started to analyze the content of art. 5 of the contract and the
circumstances of its application in the case at hand. In this sense, the DRC judge
noted that the declaration issued by the club’s coach – and not by the training
board, as specified in the aforementioned article – consisted basically of an
individual opinion of the latter on the player’s performance, not supported by any
medical or technical documentation whatsoever, and of which the player was
unaware. Therefore, the DRC judge pointed out that the application of the
aforementioned clause is based solely on potestative criteria.
14. Subsequently, the DRC judge deemed it appropriate to analyse the question of
whether such clause inserted in an employment contract could be considered as
valid at all. In that regard, the Chamber deemed that the above-mentioned rule
was ambiguous and that its application was arbitrary, since it lead to an
unacceptable result based on non-objective criteria, which entitled the Respondent
to unilaterally terminate the contract depending on the Claimant’s performance on
the pitch. The DRC judge emphasised that the lack of objective criteria by the
application of the relevant rule lead to an unjustified disadvantage of the
Claimant’s financial rights.
15. In this regard, the DRC judge considered that the possibility granted to the
Respondent to prematurely terminate the contract based on a sporting
performance of its counterparty appeared to be of a highly subjective nature,
entailing that, de facto, it is left to the complete and utter discretion of the
Respondent whether or not it was willing to continue the contractual relationship.
16. Furthermore, the DRC judge observed that the motive presented by the Respondent
for the dismissal of the Claimant was his allegedly insufficient professional
requirements, which are rather a characteristic of the player than a deliberate act of
non-compliance with his professional duties, as per the employment contract.
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17. In addition, the DRC judge pointed out that the Claimant affirms having successfully
passed his health and technical exams – organized by the club itself –, which was
undisputed by the Respondent; therefore, the aforementioned characteristics of the
player were already known to the Respondent by the time the employment
contract was concluded, and the Respondent itself has considered the player
physically fit and technically able to perform his professional duties.
18. In view of the foregoing, the DRC judge was of the opinion that art. 5 of the
contract invoked by the Respondent in order to put an end to the contract was
clearly potestative and that, consequently, the respective argumentation of the
Respondent could not be upheld by the DRC judge.
19. As regards the legal framework of the present dispute and for the sake of
completeness, the DRC judge also took due note that the Respondent argued that
the employment contract between the parties was subject to the Labour Code of V.
The DRC judge acknowledged that the Respondent argued that, based on the
Labour Code of V, an employer is entitled to terminate the contract of an employee
in case the latter does not comply with his contractual duties, shows indiscipline or
falls permanently ill; or in case of reduction of production due to force majeure or
end of operations of the employer.
20. With the foregoing in mind, the DRC judge believed to understand that, also
according to the aforementioned set of rules, an employment contract can only be
prematurely terminated without prior warning, as an ultima ratio, in case of a
severe breach of contractual obligations. Consequently, the DRC judge ascertained
that even if such rules were applicable to the case at hand, the circumstances of the
present case would not allow the termination of the contract with just cause. The
facts of the case at hand, however, embody a one-sided and premature termination
of an employment contract, which would only be justified if exercised as a measure
of last resort.
21. Moreover, the DRC judge observed that the termination agreement does not bear
the signature of the Claimant, who had, in spite of the alleged pressure to accept
the agreement, refused to do so. In disregard of his refusal, the termination
agreement was allegedly forwarded to the Football Federation V by the club.
22. According to the DRC judge, the termination agreement at hand shall be
considered null and void, since it does not fulfill one of the most important
objective conditions for the existence of any contract, namely mutual consent,
consisting, on the one hand, of an offer and, on the other hand, of its subsequent
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acceptance by the other party. Hence, an agreement signed solely by one party shall
have no legal force or binding effect.
23. On account of the above, the DRC judge decided that the reasons invoked by the
Respondent for the unilateral termination of the employment contract cannot be
accepted as a just cause. Therefore, the DRC judge concluded that the employment
contract was unilaterally terminated by the Respondent without just cause.
24. Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the DRC judge focused
his attention on the consequences of such breach of contract. Taking into
consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the
Claimant is entitled to receive from the Respondent an amount of compensation for
breach of contract.
25. In this respect, the DRC judge recalled that, according to the claim, no outstanding
amount had remained unpaid by the Respondent, the financial compensation due
to the player consisting exclusively of compensation for breach of contract by the
club.
26. In continuation, the DRC judge focused its attention on the calculation of the
amount of compensation for the unjustified breach of contract in the case at stake.
In doing so, the DRC judge 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.
27. In application of the relevant provision, the DRC judge held that he first of all had
to clarify as to whether the pertinent employment contract contains 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.
The DRC judge established that no such compensation clause was included in the
contract at the basis of the matter at stake.
28. As a consequence, the DRC judge 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 DRC judge recalled
that said provision provides for a non-exhaustive enumeration of criteria to be
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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.
29. The DRC judge 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 same contract and the
professional situation of the Claimant after the early termination occurred.
30. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract
until 31 August 2011. Consequently, the DRC judge concluded that the amount of
EUR 24,000, corresponding to the player’s monthly salaries falling due as from the
date of termination, i.e. 1 May 2011, until the end of the contract, i.e. 31 August
2011, serves as the basis for the final determination of the amount of compensation
for breach of contract.
31. Furthermore, the DRC judge took into account that the player had not signed any
employment contract with another club as of 1 May 2011 until 31 August 2011.
32. In this respect, the DRC judge decided that the entire remaining value of the
contract, corresponding to the player’s salaries for the months of May until August
2011, amounting to USD 24,000, was to be considered reasonable and justified as
compensation for the termination of the contract without just cause.
33. For all the above reasons, the DRC judge decided to partially accept the claim of the
Claimant and to reject any further claims of the Claimant.
III. Decision of the DRC judge
1.
The claim of the Claimant, U, is partially accepted.
2.
The Respondent, P, has to pay to the Claimant, U, the amount of USD 24,000 within
30 days as from the date of notification of the present decision.
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3.
If the aforementioned sum is not paid within the above-mentioned time limit, an
interest rate of 5% p.a. will apply on the said amount as of expiry of the fixed time
limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and a formal decision.
4.
Any further claims lodged by the Claimant, U, are rejected.
5.
The Claimant, U, is directed to inform the Respondent, P, immediately and directly
of the account number to which the remittance is to be made and to notify the DRC
judge 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).
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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 DRC judge
Jérôme Valcke
Secretary General
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