Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Carlos Soto (Chile), member
Philippe Diallo (France), member
Zola Malvern Percival Majavu (South Africa), member
Philippe Piat (France), member
on the claim presented by the player
A, X,
as Claimant
against the club
B, Y,
as Respondent
regarding a contractual dispute.
I.
Facts of the case
1.
On 8 January 2007, the player A from the country X, the Claimant, and the club B
from the country Y, the Respondent, signed an employment contract valid until 30
November 2007.
2.
According to clause a) of “Schedule I” and the “amended Schedule 1” to the
employment contract, the Claimant’s monthly net salary was of 5,100.
3.
According to clause b) of the “amended Schedule 1”, the Respondent shall provide
the Claimant with a Y/X return air ticket for each year up to a maximum of 2,000 per
year.
4.
On 13 June 2007, the Claimant contacted FIFA demanding the total amount of 36,930
from the Respondent due to the latter’s unjustified termination of contract.
5.
In particular, the Claimant demands from the Respondent:
- 5,100 for the allegedly outstanding June 2007 salary,
- 25,500 as compensation for the Respondent’s alleged breach of contract,
- 4,500 for the compensation the Claimant allegedly paid to his former club in order
to join the Respondent and
- 1,830 for the reimbursement of the costs of his flight ticket
Total 36,930
6.
According to the Claimant, the Respondent authorised him only 10 days instead of
the requested 14 days for his annual leave to see his 6 year old son in X. Furthermore,
the Claimant explained that, consequently to the aforementioned, he had a heated
verbal dispute with the Respondent’s manager on 5 June 2007. As a result, the
Claimant argued that the Respondent suspended him from training and match games
as of 6 June 2007.
7.
In addition, the Claimant stated that, on 12 June 2007, the Respondent gave him a
letter for termination of his employment contract including the instruction to vacate
his accommodation by 14 June 2007 due to his “outburst”, although regretting what
had happen he sent the Respondent a letter of apology on 6 June 2007.
8.
The Respondent affirmed having terminated the employment contract by means of
the above-mentioned letter. Furthermore, the Respondent is convinced that the
Claimant is not entitled to any payment of compensation, since it had a just cause to
dismiss the Claimant immediately for a serious breach of contract. In particular, the
Respondent argued that the Claimant breached the employment contract and
violated art. 2 of the “Player Code of Conduct…” of the Y Football Association (“The
Player is expected to conduct himself in a professional manner, both on and off the
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field. He will refrain from any behaviour or language that is threatening, abusive,
obscene or provocative.”).
9.
In addition, the Respondent underlined that it terminated the employment
relationship for two reasons: Firstly, due to the Claimant’s outburst against the
Respondent in the presence of its members and staff and of other players and due to
insubordination against the senior management, both by repeatedly saying the words
“Fxxking club, fxxking rules and lousy club”. Secondly, because at the same time of
the outburst, the Claimant announced that he wanted to terminate his contract with
the Respondent and that he was going back to type out his letter of resignation.
10.
Moreover, the Respondent explained that since the outburst occurred in the presence
of other players it had no alternative than to dismiss the Claimant in order to prevent
potential, irreparable damage.
11.
Regarding the instruction to vacate the apartment, the Respondent argued that this
deadline was extended to 7 days, i.e. more than sufficient time to prepare his return
to the X.
12.
Finally, and with regard to the claimed reimbursement of the costs of the Claimant’s
return air ticket, the Respondent explained that pursuant to the request of the
Claimant, the date for the latter’s return to X was fixed for 1 December 2007. It had
been understood that any changes would be borne by the Claimant personally.
Consequently, the Respondent rejected the Claimant’s claim.
13.
The Claimant responded that he insists that the Respondent had unfairly terminated
his contract and therefore adhered to his claim. Furthermore, the Claimant admitted
that he raised his voice and swore but it was not in anyone’s face nor was it aimed at
the Respondent. According to the Claimant, swearing is part of the football culture
and it was pure frustration on his behalf because all he wanted was an extra 4 days to
spend with is 6 year old son on the other side of the world. Finally, the Claimant
informed that he did not find a new club since his departure.
14.
The Respondent in reply thereto, adhered to its position. It added that on a pro-rated
basis, the Claimant was only entitled to take 5 days off. However, it had agreed to
release him for 10 days. Thus, it actually facilitated him and did not obstruct him at
all.
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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 stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber. The present matter was submitted to FIFA on 13 June 2007, as a consequence
the Chamber concluded that the revised Rules Governing Procedures (edition 2005) on
matters pending before the decision making bodies of FIFA are applicable to the
matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the above-mentioned
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the
light of articles 22 to 24 of the current version of the Regulations for the Status and
Transfer of Players (edition 2005). 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 player and a club that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide on
the present litigation involving a X player and a Y club regarding a dispute in
connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the Regulations
for 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 Regulations for the Status and Transfer of Players (edition 2005) and, on the
other hand, to the fact that the relevant contract at the basis of the present dispute
was signed on 8 January 2007 and the claim was lodged at FIFA on 13 June 2007. In
view of the aforementioned, the Chamber concluded that the current FIFA Regulations
for the Status and Transfer of Players (edition 2005, hereafter: the Regulations) are
applicable to the case at hand as to the substance.
5.
In continuation, the members of the Chamber acknowledged the above-mentioned
facts as well as all the further documentation contained in the file.
6.
To that regard, the members of the Chamber acknowledged that the parties signed an
employment contract on 8 January 2007 valid until 30 November 2007 establishing a
monthly salary in favour of the player of 5,100.
7.
Furthermore, the Chamber took due note that, on the one hand, the Claimant
demands outstanding salaries, the reimbursement of the costs for the flight ticket and
compensation in the total amount of 17,384 from the Respondent, due to the fact that
the latter allegedly terminated the employment contract without just cause on 12 June
2007.
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8.
On the other hand, the Chamber noticed that the Respondent is, in particular,
convinced that it terminated the employment contract with just cause, due to the
Claimant’s outburst against the Respondent in the presence of its members and staff
and of other players and due to insubordination against the senior management, both
by repeatedly saying the words “Fxxking club, fxxking rules and lousy club”. Secondly,
because at the same time of the outburst, the Claimant announced that he wanted to
terminate his contract with the Respondent and that he was going back to type out his
letter of resignation.
9.
In view of the above, the Chamber turned its attention to the question whether the
employment contract at the basis of the present dispute were breached by any party
and, in the affirmative, to consider the relevant consequences of the unilateral breach
of the employment contract without just cause.
10.
In this regard, the Chamber reproached the behaviour of the Claimant. It pointed out
that the Claimant should have known that in Y the above-mentioned words (cf. point
II.8.) are more offensive than in his home country, even more when they are expressed
in the public. But, the Chamber also deemed that it is quite human that at some point
everyone can get nerved. Equally, the Chamber was pleased to note that it is
uncontested by both parties that the Claimant apologized his behaviour in writing to
the Respondent.
11.
The Chamber then analysed the reaction of the Respondent to the above-mentioned
outburst and written apology of the Claimant and considered that the unilateral
termination of the employment contract was clearly a disproportionate measure taken
by the Respondent. In this context, the Chamber referred to its established
jurisprudence and to the legal principle of proportionality, according to which every
sanction following an action should be in proportion to the severity of the action itself.
Furthermore, the Chamber recalled that the unilateral termination of an employment
contract being the most severe penalisation in contractual relationships should be
applied as ultima ratio only. Consequently, and since milder sanctions, such as for
example a fine, could have been applied, the Chamber deemed that the unilateral
termination cannot be considered as in conformity with the said legal principle of
proportionality.
12.
Furthermore, the Chamber took note that the Respondent derived its termination right
from the employment contract and the “Player Code of Conduct…” of the Y Football
Association. The Chamber analysed the aforementioned documents carefully and
stated that they do not contain any legal basis which would explicitly entitle the
Respondent to unilaterally terminate the employment contract in case of a
“threatening, abusive, obscene or provocative” behaviour or language of the
Claimant. Therefore, the Chamber concluded that the Respondent had neither a legal
basis for the present unilateral termination of the relevant employment contract.
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13.
As a result, the members of the Chamber concluded that the Respondent terminated
the employment contract without just cause and decided that the Respondent is liable
to pay outstanding remuneration as well as compensation.
14.
Thereafter, the Chamber took note that it is undisputed by the Respondent that the
salary of June 2007 was outstanding at the time it terminated the contract
prematurely. Therefore, and taking into account that the Claimant rendered and
offered to render his services until the date of the said unilateral termination, i.e. 12
June 2007, the Chamber decided that the Respondent must pay to the Claimant the
outstanding salary for the first half of June 2007 in the amount of 2,550.
15.
As regards the claimed reimbursement of the costs of the Claimant’s flight ticket the
Chamber stated that it cannot take into consideration the Respondent’s argument that
the Claimant was entitled to a ticket dated for 1 December 2007 only, since the parties
stipulated in clause b) of the “amended Schedule 1” to the relevant employment that
the Claimant is entitled to receive a “return air ticket for each year” up to a maximum
of 2,000. As a result, the Chamber decided to award the Claimant’s request for the
reimbursement of the costs of his flight ticket in the claimed amount of 1,830.
16.
The Chamber passed then to analyze the Claimant’s request for compensation of 4,500
in connection with the payment he allegedly made to his former club in order to join
the Respondent. In this respect, the Chamber emphasised that the Claimant, carrying
the burden of proof (cf. art. 12 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber), was not able to
provide FIFA with documentary evidence corroborating the obligation of the
Respondent to take over this payment. Therefore, in view of the aforementioned lack
of legal basis of the said claim, the Chamber decided to reject the Claimant’s request to
that regard.
17.
In continuation, the Chamber turned its attention to the consequences of the
unjustified breach of contract committed by the Respondent in accordance with art. 17
of the Regulations. In this context, and taking into consideration the objective criteria
listed in art. 17 par. 1 of the Regulations, in particular, the remuneration due to the
Claimant under the existing contract and the fact that the Claimant apparently did not
sign a new employment contract after leaving the Respondent as well as the fact that
the Claimant’s behaviour was found reproachable, the members of the Chamber
unanimously concluded that the amount of 13,004 is to be considered reasonable and
justified as compensation for breach of contract.
18.
In view of all of the above, the members of the Dispute Resolution Chamber resumed
that the Respondent must pay outstanding remuneration to the Claimant in the
amount of 4,380 (2,550 for half of the June 2007 salary and 1,830 for the flight ticket)
and compensation of 13,004 due to the breach of contract without just cause.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant is partially accepted.
2.
The Respondent has to pay the amount of 17,384 to the Claimant, within 30 days as
from the date of notification of this decision.
3.
If the aforementioned amount is not paid within the stated deadline, an interest rate
of 5% per year will apply, as from expiry of the stated deadline and the matter will be
submitted to FIFA’s Disciplinary Committee, so that the necessary disciplinary
sanctions can be imposed.
4.
Any further claims of A are rejected.
5.
The Claimant is directed to inform the Respondent directly and immediately of the
account number to which the remittance is to be made, and to notify the Dispute
Resolution Chamber about any receipt of the payment.
6.
According to art. 61 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:
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Markus Kattner
Deputy General Secretary
Enclosed: CAS directives
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