F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 9 November 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 November 2017,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Stijn Boeykens (Belgium), member

Tomislav Kasalo (Croatia), member

Mario Gallavotti (Italy), member

Joel Talavera Zárate (Paraguay), member

Daan de Jong (the Netherlands), member

on the claim presented by the player,

Player A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding an employment-related dispute arisen between the parties

I. Facts of the case:

1. On 4 January 2017, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from 1 January 2017 until 31 December 2017.

2. In addition to that, the Claimant and the Respondent signed a contract’s schedule (hereinafter: the schedule). According to the schedule, the Claimant was entitled to a monthly salary of USD 10,000 that “must be paid not later than the 7th of the following month”.

3. Moreover, the contract’s schedule stipulates that the Respondent should provide the Claimant a house and a car with a maximum value of 2,000 each.

4. On 19 July 2017, the Claimant lodged a claim against the Respondent in front of FIFA maintaining that he had just cause to terminate the contract and requesting to be paid the total amount of USD 86,523 broken down as follows:

 USD 10,000 as outstanding salary for May 2017 plus 5% interest p.a. “as of each payment date”;

 USD 70,000 as compensation for breach of contract, corresponding to the residual value of the contract (June to December 2017) plus 5% interest p.a. “as of the grievance”;

 28,000 as “unpaid monetary value of the guaranteed benefits for the remaining value of the contract”.

5. Furthermore, the Claimant requested the imposition of sporting sanctions on the Respondent.

6. In support of his claim, the Claimant argued that he was verbally informed that he would be deregistered from the Respondent.

7. In continuation, the Claimant explained that through a memo dated 16 June 2017, the Respondent ordered the Claimant to return the house and car provided by the end of June 2017. The Claimant argued that this does not comply with what is established in the contract and “demonstrates the [Respondent´s] intention to force the [Claimant] out of the [Respondent]” and that “the [Respondent] was no longer interested in the [Claimant´s] services”.

8. Furthermore, the Claimant explained that the Respondent failed to pay the Claimant’s salary for the month of May 2017.

9. In accordance with the abovementioned considerations, the Claimant explained that he had just cause to terminate the contract. Therefore, on 19 June 2017, the Claimant sent a letter via fax to the Respondent terminating the contract with immediate effect.

10. Despite having been invited by FIFA to provide its comments on the present matter, the Respondent did not answer the Claimant’s claim.

11. Finally, and upon FIFA’s request, the Claimant informed that he did not conclude any employment contract with another club after the termination of the contract.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 19 July 2017. Consequently, the 2017 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 of the 2017 edition 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 2016), 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 from Country B and a club from Country D.

3. Furthermore, 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 (edition 2016), and considering that the present matter was submitted to FIFA on 19 July 2017, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the members of the Chamber entered into the substance of the matter, while emphasizing that, although having acknowledged all the above-mentioned facts, in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. Firstly, the DRC acknowledged that, on 4 January 2017, the Claimant and the Respondent, signed an employment contract valid as from 1 January 2017 until 31 December 2017.

6. Along with the above, the Chamber took note that the Claimant and the Respondent signed a contract’s schedule. According to the schedule, the Claimant was entitled to a monthly salary of USD 10,000 that “must be paid not later than the 7th of the following month”.

7. Moreover, the DRC observed that, on 19 June 2017, the Claimant sent a letter to the Respondent terminating the contract with immediate effect.

8. The DRC further observed that, on 19 July 2017, the Claimant lodged a claim against the Respondent before FIFA requesting the payment of USD 10,000 as outstanding remuneration, USD 70,000 as compensation for breach of contract as well as 28,000 as unpaid benefits.

9. In his claim, the Claimant held that his monthly salary of May 2017 had remained outstanding. Moreover, he explained that he was verbally informed that he would be deregistered from the Respondent and that he had to return the car and house that were provided.

10. In continuation, the Dispute Resolution Chamber took note that the Respondent, for its part, failed to present its response to the claim of the player, in spite of having been invited to do so. In this way, the Chamber considered that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

11. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

12. In continuation, the DRC acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant a monthly remuneration in the amount of USD 10,000.

13. In this respect, the DRC took into consideration that according to the Claimant, the Respondent had failed to pay his monthly salary of May 2017 in the total amount of USD 10,000.

14. Consequently, and in particular in view of the considerations under point II./11. and II./12. above, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant, until 19 June 2017, date on which the Claimant terminated the contract, the total amount of USD 16,333 corresponding to his monthly salary of May 2017 and the pro-rata remuneration for June 2017.

15. On account of the aforementioned considerations, and in accordance with the general legal principle of pacta sunt servanda, the DRC decided that the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of USD 16,333.

16. In addition, taking into consideration the Claimant’s request, the due dates for the salary (cf. point II./6.) as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest on the above-mentioned amount as follows:

a) 5% p.a. over the amount of USD 10,000 as from 8 June 2017 until the date of effective payment;

b) 5% p.a. over the amount of USD 6,333 as from 8 July 2017 until the date of effective payment.

17. Having stated the above, the Chamber turned its attention to the question as to whether the Claimant had just cause to prematurely terminate his contract with the Respondent.

18. In this regard, the Chamber stressed that on the basis of the assertions of the Claimant remuneration of only one month, i.e. May 2017, would have been outstanding. In this respect, the Chamber deemed it fit to point out that, in general, that is, regardless of specific circumstances surrounding a matter, solely the non-payment of one monthly remuneration cannot be considered a just cause for a player to cease rendering his services to a club.

19. In addition to that, the Chamber was eager to emphasise that a premature termination of an employment contract can always only be an ultima ratio and only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In the matter at hand, the DRC observed that the Claimant did not give the Respondent a prior warning as he did not put the Respondent in default, and therefore, did not allow it to remedy the alleged breach.

20. Moreover and referring to art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the members of the Chamber took into account that the Claimant had not presented any relevant documentary evidence corroborating his assertion that he would be deregistered from the Respondent.

21. Therefore, the Chamber decided that the Claimant did not have just cause to prematurely terminate the employment contract with the Respondent and consequently is not entitled to receive any compensation for breach of contract.

22. The DRC concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 16,333.

3. Within the same deadline, the Respondent has to pay to the Claimant interest as follows:

- 5% p.a. over the amount of USD 10,000 as from 8 June 2017 until the date of effective payment;

- 5% p.a. over the amount of USD 6,333 as from 8 July 2017 until the date of effective payment.

4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2 and 3 are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. Any further claim lodged by the Claimant is rejected.

6. The Claimant is directed to inform the Respondent 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.

*****

Note relating to the motivated decision (legal remedy):

According to art. 58 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: info@tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives