Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 September 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
P,
as Claimant
against the club,
D,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 August 2008, the player, P (hereinafter: the Claimant or player), and the club,
D (hereinafter: the Respondent or club), signed an employment contract valid from
1 August 2008 until 31 May 2009.
2.
On 2 August 2008, the Claimant and the Respondent signed an agreement in
addition to the employment contract, equally valid from 1 August 2008 until 31
May 2009.
3.
The employment contract and agreement stipulated that the Claimant was entitled
to receive, inter alia, the following:
- monthly salary of EUR 3’500 payable on the 30th of every month,
- EUR 5,000 signing-on fee,
- one return air ticket to country B for the player and his family,
- accommodation and a car.
4.
Furthermore, art. 1 lit. e of the employment contract stipulated that the player
“shall make every reasonable effort to improve his standard and efficiency to the
best of his abilities.”. Equally, art. 3 lit. b of the employment contract stipulated
that, if the player “…at any time disobeys or neglects or refuses to carry out or
comply with all lawful instructions given to him by the employer or his authorized
representative on the basis of this contract, or if he is found guilty of gambling or
excess consumption of alcoholic drinks, or unjustified absence from his work, or if
he violates the Laws of the Republic of C, the employer may immediately dismiss
him from his work by giving him written notice, and he shall be repatriated at his
own cost.” Moreover, art. 3 lit. c of the employment contract stipulated that “in
case of violation of the terms and conditions of the present contract the innocent
party has the right to terminate the contract and to claim damages.”
5.
On 15 January 2009, the Respondent terminated the employment contract with the
Claimant with immediate effect. In the termination notice, the Respondent
indicated that the Claimant had not complied with the provisions of the
employment contract or with the club’s internal regulations. More specifically, the
said notice indicated that, for the last four months, the Claimant was not in a
physical state to train well, not in a physical state to play 90 minutes during the
club’s matches, had only scored 2 goals in 17 games and “did not help the team”.
Moreover, the said notice stated that the club’s coach had given the player two
warnings and that the club was in possession of concrete evidence that, on various
occasions, the player had no followed up the coach’s instructions.
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6.
On 22 January 2009, the Claimant signed an employment contract with the club, A,
valid from 22 January 2009 until 30 June 2009. The said employment contract
stipulated that the Claimant was entitled to receive, inter alia, the following:
- monthly salary of EUR 800 net,
- Christmas bonus of EUR 800,
- Easter bonus of EUR 400,
- Holiday bonus of EUR 400.
7.
On 21 May 2009, the player lodged a complaint against the club before FIFA
claiming that the Respondent had terminated the contract without just cause.
Therefore, the Claimant requested the payment of EUR 16’650, constituted as
followed:
- EUR 15’750 as compensation for the remaining salaries due in the period
as from 15 January 2009 until 31 May 2009, and
- EUR 900 for 3 flight tickets (L – S) for the Claimant, his wife and his son.
8.
In his claim, the player emphasized that the accusations and reasons for the
contract termination, which were outlined in the Respondent’s termination notice,
were unfounded and false.
9.
In turn, the Respondent rejected the Claimant’s claim stating that the player
received his salary and signing-on fee. Furthermore, the Respondent argued that
the Claimant suffered no financial loss, since the Claimant had been paid by the
Respondent until 15 January 2009 and signed a new employment contract with the
club A on 26 January 2009.
10. The Respondent acknowledged, however, that it owed the Claimant the costs of
the flight tickets in the amount of EUR 900, but at the same time indicated that EUR
193 should be deducted from the said amount for outstanding house maintenance
bills. Hence, the Respondent argued that the Claimant would only be entitled to
receive EUR 707 from the Respondent.
11. In his replica, the Claimant reiterated that the allegations set out in the termination
notice dated 15 January 2009 were false and unfounded. Furthermore, the Claimant
argued that he had suffered a financial loss in the amount of EUR 11,550, which is
the difference between the amount he would have received from the Respondent
until 31 May 2009, i.e. EUR 15,750, and the amount he received from the club A
until 31 May 2009, i.e. EUR 4,200. Furthermore, the Claimant argued that the
receipts of the house maintenance bills presented by the Respondent lacked
evidence, because they were handwritten.
12. In view of the above, the Claimant amended his claim and requested the total
payment of EUR 12,450, consisting out of EUR 11,550 for the difference between
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the Claimant’s old and new employment contract, as mentioned above, plus EUR
900 for three return flight tickets to the country B.
13. In its duplica, the Respondent maintained its previous position and stressed that the
Claimant neither fulfilled his obligations as stipulated in the employment contract
nor complied with the obligations deriving from the Respondent’s internal
regulations. Therefore, the Respondent had terminated the employment contract
on 15 January 2009 and the reasons for doing so were clearly stipulated in the
termination notice. Furthermore, the Respondent pointed out that the Claimant,
upon receiving and signing the termination notice, did not raise any objection.
14. In addition, the Respondent submitted two statements, one from the Respondent’s
coach and one from the Respondent’s manager, in which it was stated that, inter
alia, the Claimant had disobeyed several orders, had fought in the dressing room
and was absent without permission during training sessions on 8 and 10 January
2009. The statement of the Respondent’s manager further indicated that the
manager of the club, O, was interested in the player’s services and had offered him
an employment contract as from February until May 2009 for a total salary of EUR
15,000, however the player left to the country G the following day without
responding to the offer.
15. In reply to the above, the Claimant argued that he was informed by the club’s coach
that the signature on his statement, which was provided by the Respondent, was
falsified.
16. The Respondent rejected such allegation from the Claimant and argued that the
Claimant had no evidence to prove that the said signature was not the coach’s
signature. Therefore, the Respondent asserted that the signature of the coach was
authentic.
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 21
May 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. art. 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 and 2 in
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combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (editions 2008 and 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 this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 24 September 2010 by means of which
the parties were informed of the composition of the Chamber, one of the members
refrained from participating in the deliberations. In view of the foregoing, and in
order to comply with the prerequisite of equal representation of club and player
representatives, the Dispute Resolution Chamber adjudicated the case in presence
of three members in accordance with art. 24 par. 2 of the Regulations on the Status
and Transfer of Players (editions 2008 and 2009).
4.
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 21
May 2009, the 2008 edition of the said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members of
the Chamber started by acknowledging that the Claimant and the Respondent
entered into an employment contract and an additional agreement, both valid as
from 1 August 2008 until 31 May 2009. Equally, the Chamber acknowledged that,
according to the said contract and agreement, the player was entitled to a monthly
salary of EUR 3,500, a signing-on fee of EUR 5,000, one family return ticket to the
country B, accommodation and a car.
6.
In this respect, the Chamber took note that, on the one hand, the Claimant argued
that the reasons put forward by the Respondent for the termination of
employment contract were unfounded and that, on the other hand, the
Respondent argued that it had terminated the employment contract signed by the
parties on 15 January 2009 with just cause.
7.
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 and, which party was responsible
for the early termination of the contractual relationship in question. 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
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and/or sporting consequences for the party that terminated the relevant
employment contract.
8.
In analysing whether the Respondent terminated the contract with or without just
cause, the Chamber concentrated on the reasons given for the said termination
and, in particular, on the corroborating evidence in support of such reasons.
9.
In view of the above, the Chamber recalled that the Respondent had terminated
the employment contract on 15 January 2009, by means of a letter in which it
informed the Claimant about the reasons for doing so. The Chamber noted from
the said notice that the reasons put forward by the Respondent for the termination
of the contract were that the Claimant was in no physical state to train well, was
not able to play 90 minutes during the club’s matches, had only scored 2 goals in 17
games and had not followed up the coach’s instructions. Moreover, the team’s
coach had given the Claimant two warnings and the Respondent was in possession
of evidence that on various occasions the Claimant had not followed up the coach’s
instructions.
10. Taking into account all the above, the Chamber referred to art. 12 par. 3 of the
Procedural Rules according to which any party deriving a right from an alleged fact
shall carry the burden of proof. Therefore, the Chamber examined the Respondent’s
allegations in light of the aforesaid article and turned its attention to the evidence
on file.
11. In this respect, as to the evidence submitted in support of its allegations, the
Chamber acknowledged that the Respondent submitted two written statements,
which were provided by the Respondent’s coach and the Respondent’s manager.
After a thorough analysis of the said statements in conjunction with the facts of the
case, the Chamber pointed out that, for obvious reasons, the statements could not
be considered as objective evidence in the present matter. The Chamber held that
the impartiality of the Respondent’s coach and Respondent’s manager had at least
to be questioned in light of their employment relationship with the Respondent.
Therefore, the Chamber found that the statements could not be considered as
objective evidence and was comforted in its decision by the fact that the statements
were not supported by any other independent evidence. Hence, the Chamber
deemed that the statements could not be taken into consideration when dealing
with the merits of the termination.
12. As a side note and for the sake of completeness only, the Chamber added that it
found it remarkable that two of the observations raised by the coach in its
statement of 23 July 2010, i.e. the alleged fight with a teammate as well as the
alleged unauthorized absence during two training sessions on 8 and 10 January
2009, were not stipulated as reasons for the termination of the employment contact
in the Respondent’s termination notice of 15 January 2009. The Chamber
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considered that, in light of the detailed nature of the termination notice, would
these events have actually occurred, it would have been logical that such events
were mentioned in the termination notice.
13. As to the reasons for the termination that were outlined in the termination notice,
the Chamber considered that the Respondent had to substantiate its allegations.
Regardless from the question whether in any case a player’s alleged poor
performances can lead to the termination of an employment contract with just
cause, since such a termination is always based on a subjective perception which
cannot be measured on an objective scale, the Chamber pointed out that the
Respondent submitted no evidence for the Claimant’s alleged poor performances,
did not provide any evidence the Claimant had received two warnings nor provided
any proof that on various occasions the Claimant had not followed up the coach’s
instructions, as explicitly mentioned by the Respondent in its termination notice.
14. As to the Respondent’s argument that the Claimant, upon receiving and signing the
termination notice, did not raise any objection and that, therefore, the Claimant
had accepted the content of the termination notice, the Chamber pointed out that
the notice merely stipulated: “I, P, confirmed that I received, read and understand
the content of the above letter, today by hand from the club D”. In the Chamber’s
view, the sentence can only be interpreted in light of its literal wording i.e. the
Claimant had merely “received, read and understand the notice”, but had not
accepted it.
15. On account of all the above and, again, regardless from the question whether or
not the reasons outlined in the Respondent’s termination notice could lead to a
justified termination of the employment contract in the first place, the Chamber
decided that the Respondent, not having met its burden of proof and in absence of
any reliable evidence to the contrary, had terminated the contract with the
Claimant without just cause. Therefore, the Respondent is liable to pay
compensation to the Claimant for the unjust termination of the contract.
16. Having said that, the Chamber turned its attention to the calculation of the amount
of compensation payable to the Claimant by the Respondent in the case at hand. In
doing so, 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 if five years, and
depending on whether the contractual breach falls within the protected period.
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17. In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains 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.
18. As a consequence, 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.
19. On this basis, and in order to evaluate the compensation to be paid by the
Respondent, the Chamber took into account the remuneration due to the Claimant
in accordance with the employment contract as well as the time remaining on the
same contract, as well as the professional situation of the Claimant after the early
termination occurred.
20. In this regard, the Chamber found the remaining value of the contract valid until 31
May 2009 to be the amount of EUR 16,650 (i.e. salaries totalling EUR 15,750 and
flight tickets totalling EUR 900), a fair and appropriate amount to serve as the basis
for the final determination of the amount of compensation for breach of contract.
21. Equally, in this respect, the Chamber recognised that the Claimant found
employment with the club A. In accordance with the relevant employment contract,
which has been made available by the player, the Claimant was entitled to receive
until 31 May 2009, the total amount of EUR 4,200 and therewith enabled to reduce
his loss of income. Consequently, according to the constant practice of the DRC,
such remuneration under the new employment contract shall be taken into account
in the calculation of the amount of compensation for breach of contract.
22. 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.
23. Accordingly, and taking into account the aforementioned considerations, the
Chamber decided that the Respondent has to pay to the Claimant the amount of
EUR 12,450 as compensation for breach of contract, which was considered
reasonable and justified taking into consideration the specificities of the case at
hand.
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24. On account of all the above-mentioned considerations, the Chamber decided to
accept the claim of the Claimant and that the Respondent is liable to pay the
amount of EUR 12,450 to the Claimant as compensation for breach of contract.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, P, is accepted.
2.
The Respondent, D, has to pay the amount of EUR 12’450 to the Claimant within 30
days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the above-mentioned deadline,
interest at the rate of 5% per year will apply as of expiry of the stipulated time limit
and the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and a formal decision.
4.
The Claimant, P, is directed to inform the Respondent, D, 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:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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