F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 8 September 2016
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 September 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Leonardo Grosso (Italy), member
Theodore Giannikos (Greece), member
Mohamed Mecherara (Algeria), 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 18 July 2015, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) and an “addendum” both valid from the date of signature until 30 June 2017, with an extension option for the 2017/2018 season.
2. According to art. 3 of the contract, the Claimant was entitled to receive, inter alia, EUR 1,400,004 per season, payable in 12 monthly instalments of EUR 116,667 until the 11th day of the subsequent month.
3. According to art. 11 of the contract, ”If any of the Parties terminates [the contract] alleging just cause and its existence is not recognised, the party who has so acted shall be obliged to compensate the other party for all damages caused by the illegitimate conduct, being now determined under the article 17.2 in fine of the FIFA Regulations on the Status and Transfer of Players, the amount of the compensation being the following:
- ”if Club C terminates [the contract], it shall be obliged to pay to the player an indemnity corresponding to the amount of the remunerations to be due up to the end of the agreement and it may deduct from such amount the amounts to be received by the player for rendering the same activity to another sport entity during the period corresponding to the term of the terminated agreement;
- if the player terminates [the contract], i.e. apparently without just cause and in breach of the provisions set forth in the preceding clause 9, his transfer to another club shall depend on the payment by the latter to Club C the amount of EUR 45,000,000 without prejudice to the possibility of Club C to claim an indemnity of the player’s responsibility as foreseen in the applicable labour law. It shall be presumed that any club signing the player has induced him to terminate this contract without just cause and is also causing damages to Club C and that is why the parties agree in the specific terms of this clause whereas the breach was caused by the player or by Club C.”
4. On 15 August 2015, the Claimant and the Respondent signed an agreement by means of which they mutually terminated the contract with immediate effect (hereinafter: the termination agreement).
5. The termination agreement further sets forth that “the player declares having no outstanding sums or any further claim against Club C, stating that all previously owed sums or any subsequent amount falling due on the basis of the employment relationship which ends are considered to have been paid, including any remuneration for the month of August 2015.” (Note: free translation of the Claimant’s French translation [“Le Joueur déclare qu’il n’a plus rien à recevoir ou réclamer du Club C, étant considérées comme étant soldées à toutes fins éventuelles les sommes échues ou à échoir découlant de la relation de travail qui prend fin, y compris une quelconque rémunération pour le mois d’août 2015”] of the relevant clause drafted in the language of country D).
6. According to art. 3 of the termination agreement, the validity of the termination agreement is conditioned by on the signature of a valid employment contract between the Claimant and the club from country E, Club F (hereinafter: Club F).
7. On 17 August 2015, the Claimant and Club F signed an employment contract and an annex, both valid from 17 August 2015 until 30 June 2018, according to which the Claimant is entitled to receive inter alia a total amount of EUR 3,190,000 until 30 June 2018.
8. On 9 November 2015, the Claimant contacted the Respondent in writing, asserting that he was forced by the latter to sign the termination agreement and pointing out that the Respondent did not pay the amount of EUR 100,000 allegedly unofficially offered to him for the premature termination of the contract, including the payment of the salary of August 2015. The Claimant further requested the payment of EUR 1,000,000 within 15 days of receipt of the letter, as damages for the prejudice allegedly caused by the club to the player, otherwise he would refer the case to FIFA.
9. On 15 December 2015, the Respondent replied to the Claimant that it did not cause any damage to the Claimant and denied having agreed upon the payment of a compensation to the Claimant for the termination of the contract.
10. On 18 January 2016, the Claimant lodged a claim in front of FIFA against the Respondent, requesting to be awarded the total amount of EUR 1,395,008 as follows:
- EUR 1,055,008, i.e. the residual value of the contract in the amount of EUR 2,800,008 minus the amount of EUR 1,745,000 that he is entitled to receive from Club F until 30 June 2017;
- EUR 300,000 as damages for the negative impact caused on his reputation;
- EUR 40,000 as damages for the negative impact caused on his sportive career.
11. In his argumentation, the Claimant held that the Respondent never included him in the 1st team of the club, forbidding him to train and play with the main team. In this respect, the Claimant presented a copy of text messages sent from 3 August until 5 August 2015 between the Claimant and an alleged member of the club.
12. In addition, the Claimant stated that he accepted the proposition of Club F to play with its main team, since he realised that the Respondent was not interested in him anymore.
13. The Claimant added that the Respondent terminated the contract without just cause, by allegedly forcing him to sign the termination agreement.
14. The Claimant further claimed that the Respondent refused to put in writing in the termination agreement that the Respondent undertook to pay the Claimant the amount of EUR 100,000. In this respect, the Claimant presented a copy of text messages dated 15 and 16 September 2015 exchanged between an alleged board advisor of the Respondent and the Claimant, whereby the latter asked for a bank transfer without mention of the amount, to which the alleged board advisor of the Respondent replied that the transfer was about to be done. Additionally, the Claimant submitted an undated text message of the alleged lawyer of the Respondent, stating that the amount of EUR 90,000 would be sent to the Claimant’s agent.
15. In its reply to the Claimant’s claim, the Respondent rejected the Claimant’s argumentation, asserting that it did not exclude the Claimant from the main team and explaining that the Claimant needed a special training to re-establish his physical condition. In this respect, the Respondent presented a medical report dated “21 31” July 2015, signed by the doctor of the club, indicating that the Claimant must lose some weight.
16. The Respondent further held that it never promised the Claimant a payment of EUR 100,000. In addition, the Respondent provided the payslip of July 2015, indicating a payment of EUR 50,555.70 gross and EUR 28,168.47 net.
17. The Respondent also highlighted that the Claimant did not agree with his training schedule organized by the club and allegedly started to put pressure on the Respondent to find an amicable settlement to leave the club.
18. In addition, the Respondent highlighted that it did not contact Club F to negotiate a settlement regarding the Claimant and did not force the latter to sign the termination agreement, which was only signed after the signature by the Claimant of his new contract with Club F. In this respect, the Respondent submitted the transfer agreement concluded between Club F and the Respondent dated 15 August 2015.
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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 18 January 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 claim was lodged on 18 January 2016, the 2015 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that 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. In this respect, after having taken note of the correspondence exchanged during the proceedings in the present matter, the members of the Chamber first established that the Respondent’s reply to the claim was received prior to expiry of the time limit that had been set by FIFA, i.e. 18 April 2016, and therefore shall be taken into account when assessing the matter at hand.
6. The DRC acknowledged that the Claimant and the Respondent signed an employment contract valid from 18 July 2015 until 30 June 2017 and that on 15 August 2015 the parties signed a termination agreement, by means of which the employment contract was terminated by mutual consent with immediate effect and according to which the Claimant acknowledged that all amounts due, including the salary of August 2015, had been paid to him and that he has no further claims against the Respondent.
7. The members of the Chamber also took note that the validity of the termination agreement was conditioned on the signature of an employment contract between the Claimant and the club from country E, Club F. It was further noted that, following the signature of the employment contract between the Claimant and Club F and of the transfer agreement between the Respondent and Club F, the Claimant was transferred on a definitive basis to Club F.
8. The Chamber then reviewed the claim of the Claimant, who inter alia held that the termination agreement was signed by him under pressure from the Respondent, which was no longer interested in him, and that, consequently, the contract was terminated by the Respondent without just cause. Therefore, according to Claimant, the Respondent is liable to pay compensation to him.
9. Subsequently, the Chamber noted that the Respondent, on the other hand, is of the firm opinion that the termination agreement was signed by the Claimant without any type of coercion whatsoever and, consequently, rejects the claim lodged against it.
10. At this point, the Chamber deemed it appropriate to recall the legal principle of the burden of proof and the wording of 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.
11. Having said that, the Chamber pointed out that in the present case, the Claimant bore the burden of proving that he had been coerced by the Respondent into signing the termination agreement and that the Respondent was to be held liable for breach of contract and payment of compensation.
12. Subsequently, the members of the Chamber agreed that the Claimant failed to present documentary evidence in support of his allegation that he had been forced by the Respondent to sign the termination agreement.
13. In continuation, the Chamber recalled that the validity of the termination agreement was made subject to the Claimant signing a valid employment contract with Club F, which condition in fact was fulfilled on 17 August 2015, when the Claimant and Club F signed a valid employment contract.
14. Consequently, the members of the Chamber established that the termination agreement was valid and binding upon the parties.
15. Furthermore, the DRC highlighted that the termination agreement unambiguously stipulated that, apart from the contract having been terminated by mutual consent with immediate effect, the Claimant acknowledged having received all amounts due to him on the basis of the contract and that he has not further claims against the Respondent.
16. In the light of all of the above, in particular the fact that the termination agreement signed by and between the Claimant and the Respondent was valid and binding upon the parties, the Dispute Resolution Chamber decided that it must reject the claim put forward by the Claimant.
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to article 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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives