Labour Disputes
Texto da decisão
REF FPSD-3385
Decision of the
Dispute Resolution Chamber
passed on 10 December 2021
regarding an employment-related dispute concerning the player Yoann Tribeau
BY:
Roy Vermeer (Netherlands)
CLAIMANT:
Player Yoann Tribeau, France
Represented by Loizos Hadjidemetriou
RESPONDENT:
Club Omonoia Aradippou, Cyprus
Represented by George T. Christofides
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I.
Facts of the case
1.
On 1 August 2020, the French player Yoann Tribeau (hereinafter the Claimant or the player) and
the Cypriot club Omonoia Aradippou (hereinafter the Respondent or the club) concluded an
employment agreement (hereinafter the Employment Agreement), valid as from 1 August 2020
until 30 April 2021.
2.
In Clause 1 of the Employment Agreement, the Claimant and the Respondent (jointly referred to
as the Parties) agreed upon, inter alia, the following financial terms:
Salary
EUR 400/month for salary (Clause 1.3.1. of the Employment Agreement)
EUR 300/month for travelling expenses (Clause 1.5. of the Employment Agreement)
EUR 400/month for sports equipment (Clause 1.5. of the Employment Agreement)
EUR 200/month for other expenses (Clause 1.5. of the Employment Agreement)
3.
In total, the Claimant was entitled to an amount of EUR 1,300 as his monthly salary. The
Employment Agreement also specifically mentioned that the Claimant was hired to play for the
first team of the Respondent.
4.
Furthermore, Clause 1.4. of the Employment Agreement contained a regulation with regard to
the performance bonuses:
-
EUR 2,000 if at the end of first round the Respondent was at the 6th position or above;
EUR 2,000 if at the end of the season the Respondent achieved to promote to the Cyprus
First Division;
EUR 1,000 if the at the end of the season the Respondent was at the 4th position or above.
5.
In mid-December 2020, the Claimant was informed that the Respondent decided to send him to
train with U-21 Team.
6.
On 14 December 2020, the Claimant received a letter from the Respondent, inviting him to a
disciplinary meeting taking place the same day. Said letter only mentioned that the Claimant had
not behaved in accordance with the internal rules and regulations of the Respondent.
7.
During the disciplinary meeting, an alleged breach of contract by the Claimant was discussed, i.e.
alleged “destroying training equipment (property of the club), attacking the coach and the fact
that [the] team players had to restrain [the Claimant] from hitting the coach in front of visitors and
junior players.”
8.
On 15 December 2020, the Respondent unilaterally terminated the Employment Agreement with
immediate effect, based on the decision of the disciplinary committee.
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9.
On 15 January 2021, the Claimant signed a new employment agreement (hereinafter the New
Employment Agreement) with the Cypriot club, Achyronas Liopetriou, valid as of 15 January 2021
until 15 May 2021.
10. In accordance with Clause 1.3 of the New Employment Agreement, the Claimant was entitled to
the monthly salary of EUR 112. The value of the New Employment Agreement is EUR 448.
II. Proceedings before FIFA
11. On 23 August 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
12. On 23 August 2021, the Claimant lodged a claim before FIFA, requesting the payment of an
amount of EUR 3,229 for the remaining overdue payables and an amount of EUR 5,871 for
compensation due to the alleged breach of contract.
13. Outside its request for relief, the Claimant requested a compensation for bonuses in the amount
of EUR 2,000, “which he would have received in the future, had the Respondent not breached its
contractual obligations.” In this regard, the Claimant added that the Respondent finished at the
4th place at the end of the first round.
14. The Claimant contested the legitimacy of the termination by the Respondent, as well as
Respondent’s assertions that he behaved in breach of his contractual obligations. In support of
his allegations, the Claimant submitted witness statements by his teammates, as well as the
assistant coach.
15. In view of the above, the Claimant argued that the Respondent did not have just cause to
terminate the contract as the termination can only be an ultima ratio measure.
16. The requests for relief of the Claimant were the following:
i.
Overdue payables amounting to EUR 3,229, plus 5% interest p.a. until the date of effective
payment as follows:
- “EUR 1,300 plus interest since 01/11/2020
- EUR 1,300 plus interest since 01/12/2020
- EUR 629 plus interest since 16/12/2020.”
ii.
Compensation for the breach of contract amounting to EUR 5,871, corresponding to the
residual value of the contract, plus 5% interest p.a. as of 16 December 2020 until the date
of effective payment.
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b. Position of the Respondent
17. The Respondent rejected the allegations of the Claimant and argued that the Claimant clearly
violated the Employment Agreement and that his “conduct must be considered beyond the sport
level and constitutes a clear ground justifying the termination of the contact.”
18. In support of its allegations, the Respondent submitted six witness statements and requested to
reject the claim of the Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 23 August 2021 and submitted for
decision on 10 December 2021. Taking into account the wording of art. 34 of the October 2021
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
20. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that
in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status
and Transfer of Players (August 2021 edition), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
French player and a Cypriot club.
21. Finally, the Single Judge analysed which 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 2 of the
Regulations on the Status and Transfer of Player (August 2021 edition), and considering that the
present claim was lodged on 23 August 2021, the February 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
22. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof. Likewise, the Single Judge stressed the wording of
art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by
the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
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c. Merits of the dispute
23. His competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge emphasised that in the following considerations, he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
24. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that the parties strongly dispute if the club had just cause to terminate
the Employment Agreement with the player.
25. First of all, the Single Judge recalled that, in line with the well-stablished jurisprudence of the DRC, a
termination of a contract is only an ultima ratio measure, i.e. it can be taken only in cases of repeated
and grave incidents, which, under the circumstances, would still require that the Claimant be warned
beforehand, of the eventual consequences of the actions, if they were to be repeated. The immediate
termination without prior notice can only be accepted under very limited circumstances and warrants
gross misconduct on the side of the employee.
26. In order to establish if the Respondent had just cause to terminate the contract, the Single Judge
looked at the events described by the Respondent as "gross misconduct", which led to the
termination.
27. In particular, the Single Judged turned his attention to the allegation of the club that the player
destroyed training equipment and attacked the coach. Equally, the Single Judge observed that this
incident was disputed by the player.
28. In view of the foregoing, the Single Judge referred to art. 13 par. 5 of the Procedural Rules,
according to which a party that asserts a fact has the burden of proving it and went on to analyse
the documentation provided by the parties in support of their allegations. In this respect, the
Single Judge noted that both Parties submitted witness statements.
29. Whereas the witness statements of several team members and the assistant coach, provided by
the Claimant, read that the latter “[…] never attacked or tried to attack the coach and [the team]
never had to restrain him from doing so. Neither did he ever maliciously destroy any property of
the club.”, the witness statements of other team members, the team manager and the head
coach, provided by the Respondent, state the contrary.
30. Furthermore, the Single Judge noted that the Parties refer to one incident only and that no further
allegations with regard to any other misconduct of the player exist.
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31. The Single Judge then turned his attention to the disciplinary meeting which took place after the
alleged incident, noting that the Respondent unilaterally terminated the Employment Agreement
with immediate effect based on the decision of the disciplinary committee.
32. In this respect, the Single Judge pointed to the fact that the Respondent failed to provide any
evidence with regard to the respective meeting, for example a motivated decision by the
disciplinary committee. Furthermore, the Single Judge noted that the letter by means of which
the Player was invited to the disciplinary meeting did not specify the exact allegations which leads
to further doubts on the process initiated by the Club. Equally, not all the documentation available
had been provided to the Player. Indeed, whereas the witness statements of the Club were all
dated 12 December 2020, those were not sent to the Player in anticipation of his disciplinary
meeting and he therefore did not have all the documentation at his disposal to properly defend
himself in front of the Disciplinary Committee. In addition, and even though all the witness
statements provided by the Club indicated that the coach had allegedly been attacked, none of
the statements detailed what the ‘attack’ entailed. Finally, the Single Judge ruled that the Internal
Regulations of the Club are irrelevant as the document was not signed by the Player. On account
of the foregoing, the Single Judge has serious doubts about both the existence of the alleged
incident as well as the legitimacy of the disciplinary process.
33. Evaluating the evidence on file and taking into account the above as well as that the disputed
incident immediately led to the termination of the contract by the Respondent, i.e. without any
prior warning, the Single Judge concluded that the one incident, if at all proven, does not meet
the threshold of art. 14 of the Regulations and, consequently, that the termination of the contract
is not to be considered an ultima ratio measure.
34. Finally, the Single Judge observed that in the moment of termination, two monthly salaries
remained outstanding. In this regard, the Single Judge concluded that the overall circumstances
on 15 December 2020 did not provide the Respondent the possibility to validly terminate the
contract and that it had in fact been the Club which had violated its contractual obligations first.
In conclusion, the Single Judge therefore deemed that the Respondent had terminated the
contract with the Claimant without just cause and is to be held liable for the consequences
thereof.
ii. Consequences
35. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
36. First of all, the Single Judge then observed that it remained undisputed by the Respondent that
the salaries of October 2021, November 2021 and December 2021 (pro rata 15 days) remained
still outstanding at the date of the decision.
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37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the amounts which were
outstanding under the contract at the moment of the termination, i.e. EUR 3,229.
38. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the DRC in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on
the outstanding amounts as follows:
- on the amount of EUR 1,300 from 1 November 2020 until the date of effective payment;
- on the amount of EUR 1,300 from 1 December 2020 until the date of effective payment;
- on the amount of EUR 629 from 16 December 2020 until the date of effective payment.
39.
Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, he 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 player 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.
40.
In application of the relevant provision, the Single Judge held that he 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 Single Judge established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
41.
As a consequence, the Single Judge determined that the amount of compensation payable by
the club to the player had to be assessed in application of the other parameters set out in art. 17
par. 1 of the Regulations. The Single Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount
of compensation payable.
42.
Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded with
the calculation of the monies payable to the player under the terms of the contract from the
date of its unilateral termination until its end date. Consequently, the Single Judge concluded
that the amount of EUR 5,871 (i.e. the residual value of the contract) serves as the basis for the
determination of the amount of compensation for breach of contract.
43.
In continuation, the Single Judge verified as to whether the player 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 as well
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as art. 17 par. 1 lit. ii) of the Regulations, 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.
44.
Indeed, the player found employment with Achyronas Liopetriou. In this respect, the Single
Judge noted that the New Employment Agreement runs longer than the Employment
Agreement, therefore, only the overlapping period of the two agreements shall be taken into
account, i.e. until 30 April 2021.
45.
The Single Judge then established that the value of the New Employment Agreement for the
pertinent period amounted to EUR 392. Therefore, he concluded that the player mitigated his
damages in the total amount EUR 392.
46.
Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Single Judge decided that the club must pay the amount of EUR 5,479 to
the player (i.e. EUR 5,871 minus EUR 392), which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
47.
Taking into consideration the player’s request as well as the constant practice of the Single Judge
in this regard, the latter decided to award the player interest on said compensation at the rate
of 5% p.a. as of 16 December 2020 until the date of effective payment.
48.
Lastly, the Single Judge noted that the Claimant requested a compensation for bonuses in the
amount of EUR 2,000, “which he would have received in the future, had the Respondent not
breached its contractual obligations.”
49.
Furthermore, the Single Judge recalled the jurisprudence of the DRC and noted that, in any event,
it cannot grant a performance-based bonus when the player was no longer with the team when
the 4th position was reached.
50.
In view of the above, the Single Judge rejected the above-mentioned request for bonus.
iii. Compliance with monetary decisions
51.
Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding
body shall also rule on the consequences deriving from the failure of the concerned party to pay
the relevant amounts of outstanding remuneration and/or compensation in due time.
52.
In this regard, the Single Judge highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
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53.
Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay
the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from registering
any new players, either nationally or internationally, for the maximum duration of three entire
and consecutive registration periods shall become immediately effective on the Respondent in
accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
54.
The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
55.
The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to
its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8 of
the Regulations.
d. Costs
56.
The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, he decided that no procedural costs were to be imposed on the
parties.
57.
For the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of the
Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
58.
Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yoann Tribeau, is accepted.
2.
The Respondent, Omonoia Aradippou, has to pay to the Claimant, the following amount(s):
- EUR 1,300 as outstanding remuneration plus 5% interest p.a. as from 1 November 2020 until the
date of effective payment;
- EUR 1,300 as outstanding remuneration plus 5% interest p.a. as from 1 December 2020 until the
date of effective payment;
- EUR 629 as outstanding remuneration plus 5% interest p.a. as from 16 December 2020 until the
date of effective payment;
- EUR 5,479 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 16 December 2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), if full payment (including all applicable interest) is not made within 45 days of notification
of this decision, the following consequences shall apply:
1.
2.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall be
of up to three entire and consecutive registration periods.
The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of
the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with
art. 24bis par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 17 of the Procedural Rules).
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