DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 15 dicembre 2016 • Stagione sportiva: 2016/2017

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 15 December 2016

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 December 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mario Gallavotti (Italy), member

John Bramhall (England), member

on the claim presented by the player,

Player A, from country B

as Claimant

against the club,

Club C, from country D

as Respondent

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 22 January 2015, the player of country B, Player A (hereinafter: the Claimant), and the club of country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 31 May 2017.

2. According to art. 3 of the contract, the Claimant was to be remunerated with a total net amount of EUR 2,575,000, to be paid as follows:

- EUR 75,000 as a sign-on fee, payable in two instalments: EUR 50,000 ultimately on 26 January 2015 and EUR 25,000 ultimately on 30 August 2015;

- For the 2014/2015 season: EUR 150,000 as advance payment to be paid on 26 January 2015 as well as EUR 58,334 as salary to be paid each month from January 2015 until June 2015 (i.e. 6 monthly salaries);

- For the 2015/2016 season: EUR 300,000 as advance payment to be paid on 30 August 2015 as well as EUR 58,334 as salary to be paid each month from July 2015 until June 2016 (i.e. 12 monthly salaries);

- For the season 2016/2017: EUR 300,000 as advance payment to be paid on 30 August 2016 as well as EUR 58,334 as salary to be paid each month from July 2016 until June 2017 (i.e. 12 monthly salaries).

3. In addition, art. 3 of the contract provided for the following payments:

- For the 2014/2015 season: EUR 3,750 net on 26 January 2015 for flight tickets, apartment and other expenses;

- For the 2015/2016 and 2016/2017 seasons: EUR 7,500 net on 30 August 2015 and 30 August 2016 for flight tickets, apartment and other expenses.

4. Furthermore, art. 3 par. 5 of the contract stipulates the following:

“All monthly salary payments, as mentioned above, will be paid ultimately on the 10th day of the following month. In the event that [the Respondent] will be late with the payment of 2 months salary, [the Claimant] has the right to unilaterally terminate the employment contract. In that case, [the Respondent] will be liable to compensate [the Claimant] for the full remaining salary of the employment contract”.

5. In addition, art. 3 par. 5 provides for the following clause:

“Relegation clause: In case [the Respondent] relegates from the Super League of country D at any moment, [the Claimant] will be free to leave and sign with another club. [The Respondent] will fully and unconditionally cooperate in this.” (hereinafter: the relegation clause).

6. On 11 April 2016, the Claimant lodged a claim before FIFA against the Respondent and requested the following amounts:

- Outstanding salaries amounting to EUR 686,254, plus 5% interest p.a. as from the due dates, consisting of:

 Salaries for January, March, April, May, June and July 2015 at EUR 58,334 each;

 Additional amount for flight tickets, apartment and other expenses of EUR 3,750;

 Advance payment of EUR 300,000;

 Additional amount for flight tickets, apartment and other expenses of EUR 7,500;

 Second instalment of the sign-on fee of EUR 25,000.

- Compensation amounting to EUR 1,616,182;

- Legal costs of EUR 10,000.

7. In support of his claim, the Claimant indicated that the Respondent had only paid the first instalment of the sign-on fee (EUR 50,000) and the salary of February 2015 (EUR 58,334) to him. In this respect, the Claimant explained having requested the outstanding salaries on several occasions and having put the Respondent in default on 17 June 2015, granting a deadline until 25 June 2015 in order for the Respondent to pay the outstanding amount of EUR 237,087 net (salaries of January, March, April and May 2015, as well as an additional amount of EUR 3,750 for flight tickets, apartment and other expenses).

8. In this respect, the Claimant explained that the Respondent reacted on 22 June 2015 with a proposal to sign a settlement agreement according to which he would receive a “small part of the overdue payables” if he would waive the relegation clause. On 23 June 2015, in reply to the Respondent’s proposal, the Claimant stated that he did not accept it and that he was not willing to waive his rights.

9. On 15 July 2015, the Claimant terminated the contract in writing invoking art. 3 par. 5 of the contract which would allow him to terminate the contract unilaterally in case the Respondent would be late with the payment of two monthly salaries.

10. In continuation, the Claimant explained that the Respondent was not willing to de-register him from the FF of country D. On 26 August 2015, upon request of the Claimant, the FF of country D confirmed that the termination of the contract had been entered into its records. Thereafter, on 10 September 2015, the club of country E, Club F, offered the Claimant a contract subject to the condition that the Claimant would obtain a written confirmation from the Respondent by 11 September 2015 that no dispute existed between the parties regarding the termination of the contract.

11. Consequently, the Claimant turned to the Respondent to obtain said confirmation. In return, the Respondent proposed to sign a “Mutual Termination and Release Agreement” (hereinafter: the termination agreement) according to which the Claimant would receive a compensation of three monthly salaries (EUR 175,002 net) and an additional compensation of EUR 3,750. The Claimant argued that the Respondent took advantage of the situation and that he finally signed the termination agreement under pressure considering the deadline set by Club F.

12. The termination agreement, dated 11 September 2015, included the following provisions:

“3. The Parties hereby agree and commit to terminate all rights and obligations arising out of their employment contract dated 18 January 2015 (…) and with the signing of this Mutual Termination and Release Agreement, all other obligations (such as monthly salaries, match salaries, fringe benefits, bonus payments, any kind of compensations, bonds, promissory notes etc.) derived from the employment contract is treated as fulfilled and the Parties discharge each other from all of further obligations.

March 2015, April 2015 and May 2015 (3 x EUR58.334 = EUR175.002) salaries and flight tickets & apartment payment in the amount of EUR3.750.-

[The Respondent] hereby declares that a total amount of NET EUR 178.752.- will be paid to [the Claimant] on the 15th October 2015 date at latest. In case this amount will not be paid in the date before mentioned, [the Claimant] has the right to claim to FIFA. (only in the event [the Respondent] do no paid the amount of NET EUR 178.752)

4. By signing this agreement, the Parties also agree to change and accepts to not go to FIFA, CAS or other law organization to take the salaries and compensation those he deserved because of 2 months nonpaying compensation clause which is written on pre-contract signed on 20.01.2015. [The Respondent] will not pay any compensation about the agreements those are signed before between [the Claimant] and [the Respondent].

5. For the avoidance of doubt, the release shall include any and all claims, which were or could have been asserted in the proceedings before FF of Country D, FIFA, CAS, UEFA or national courts (except the payment of NET EUR 178.752 above mentioned).

6. This release agreement will enter in force as soon as [the Respondent] provides the player with the ITC (International Transfer Certificate) today, 11th September 2015.”

13. On 15 October 2015, the Claimant’s legal representative contacted the Respondent via Whatsapp messenger requesting the payment of the amount stipulated in the termination agreement. Furthermore, the Claimant’s legal representative stated that failure to pay would allow the Claimant to claim the full residual value of the contract in front of FIFA. On 16 October 2015, following the non-payment of the amount stipulated in the termination agreement, the Claimant terminated said agreement in writing, stating that “the previous situation would come back into force” and claiming the full remaining value of the employment contract. In this respect, the Claimant held that art. 3 of the termination agreement did not prevent him from claiming the full remaining value of the contract, otherwise it would have been clearly stipulated in said provision. Moreover, the Claimant argued that the Respondent accepted this by means of an exchange of text messages.

14. According to the Claimant, the termination agreement should in any case be considered null and void as it had no legal basis. The contract had already been terminated by him on 15 July 2015 and, therefore, the parties could not mutually terminate the same contract on 11 September 2015.

15. Moreover, as to art. 6 of the termination agreement, the Claimant argued that the Respondent never provided him with the ITC and, consequently, the agreement never came into force.

16. According to the information contained in the Transfer Matching System (TMS), the ITC for the player’s transfer from the Respondent to Club F was delivered to and received by the Football Association of country E on 11 September 2015.

17. In its reply, the Respondent argued having paid the following amounts to the Claimant:

- EUR 200,000 on 26 January 2015, pertaining to the sign-on fee and the advance payment for the 2014/2015 season;

- EUR 58,334 on 20 February 2015, pertaining to the salary of January 2015;

- EUR 58,334 on 3 April 2015, pertaining to the salary of February 2015.

18. Furthermore, the Respondent argued that the compensation clause in art. 3 par. 5 of the contract is not reciprocal, providing for an advantage to the Claimant only. As to the issuance of the ITC for the Claimant’s transfer to Club F, the Respondent held that it had cooperated and submitted a letter that was sent to the FF of country D to approve the issuance of the ITC.

19. Finally, the Respondent argued that the termination agreement does not contain any clause regarding its invalidity in case of non-payment by the Respondent and acknowledged a debt of EUR 178,752 towards the Claimant in accordance with the termination agreement.

20. In his replica, the Claimant explained that he could no longer check if the Respondent had indeed made the alleged payments as he can no longer access his bank account in country D. However, the Claimant emphasized that the Respondent had never previously alleged having made any further payments to him. Furthermore, the Claimant held that, even if the Respondent made the alleged payments, it was late with several other payments. Moreover, the Claimant argued that the contract did not contain a clause that would entitle the Respondent to cease payments or to unilaterally terminate the contract in the event of relegation.

21. In continuation, the Claimant referred to art. 3 par. 5 of the contract and explained that said clause merely reflects the jurisprudence of the DRC regarding the termination of a contract with just cause and was included to provide the Claimant with “some more payment security”. In any case, considering that the Respondent was late with the payment of more than three monthly salaries, the Claimant held that he would have been entitled to terminate the contract with just cause without the inclusion of art. 3 par. 5 in the contract.

22. In its duplica, the Respondent highlighted that the last payment to the Claimant was executed on 3 April 2015, when the contract was still running and the Claimant must have had access to his bank account at that moment. Furthermore, the amount stipulated in the termination agreement, i.e. EUR 178,752, was calculated considering the outstanding salaries of March, April and May 2015 (3 x EUR 58,334 = EUR 175,002), taking into account that the season ended in May 2015, as well as the additional amount of EUR 3,750.

23. As to the termination of the contract by the Claimant, the Respondent argued that the letter of 15 July 2015 does not have a clear termination declaration. According to the FF of country D recordings, the termination date was 24 August 2015.

24. With regard to the conclusion of the termination agreement, the Respondent argued that it did not pressure the Claimant to sign said document and that it was not aware of the deadline of the transfer window in the Club E.

25. Finally, the Claimant informed FIFA that his new employment contract with Club F was to run from 10 September 2015 until 10 June 2016 and provided for a total remuneration of EUR 1,000,000. The Claimant further stated that he has been unemployed since the expiry of the aforementioned contract.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 11 April 2016. Consequently, the 2015 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 Procedural Rules).

2. Subsequently, the DRC referred to art. 3 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 in conjunction 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 DRC analysed which edition of the regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2015 and 2016) and considering that the present matter was submitted to FIFA on 11 April 2016, the 2015 edition of said Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the present matter 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. Equally, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

5. In this respect, the DRC acknowledged that, on 22 January 2015, the Claimant and the Respondent signed an employment contract, valid as from the date of signature until 31 May 2017.

6. In addition, the members of the DRC took note of the fact that, after having put the Respondent in default for outstanding salaries, the Claimant terminated the contract in writing on 15 July 2015 invoking art. 3 par. 5 of the contract, which provides for the following:

7. Subsequently, the members of the DRC observed that it remained undisputed that the parties concluded the termination agreement, dated 11 September 2015, which includes the following provisions:

March 2015, April 2015 and May 2015 (3 x EUR58.334 = EUR175.002) salaries and flight tickets & apartment payment in the amount of EUR3.750.-

5. For the avoidance of doubt, the release shall include any and all claims, which were or could have been asserted in the proceedings before FF of country D, FIFA, CAS, UEFA or national courts (except the payment of NET EUR 178.752 above mentioned).

6. This release agreement will enter in force as soon as [the Respondent] provides the player with the ITC (International Transfer Certificate) today, 11th September 2015.”

8. Entering into the arguments set forth by the parties, the Chamber took note of the Claimant’s claim, according to which he had terminated the contract with just cause on 15 July 2015, considering the content of art. 3 par. 5 of the contract as well as the salaries owed to him by the Respondent.

9. Furthermore, the Chamber took note of the Claimant’s position that, on 10 September 2015, the club of country E, Club F, offered the Claimant a contract subject to the condition that the Claimant would obtain a written confirmation from the Respondent by 11 September 2015 that no dispute existed between the parties regarding the termination of the contract. Subsequently, the Chamber noted that the Claimant turned to the Respondent to obtain said confirmation. In return, the Respondent proposed to sign the termination agreement. The Chamber observed that the Claimant argued that the Respondent took advantage of the situation and that he finally signed the termination agreement under pressure considering the deadline set by Club F.

10. In continuation, the members of the Chamber took note that, on 16 October 2015, following the non-payment of the amount stipulated in the termination agreement, the Claimant terminated said agreement in writing, stating that “the previous situation would come back into force” and claiming the full remaining value of the employment contract. In this respect, the Claimant held that art. 3 of the termination agreement did not prevent him from claiming the full remaining value of the contract, otherwise it would have been clearly stipulated in said provision.

11. Subsequently, the members of the Chamber observed that, according to the Claimant, the termination agreement should in any case be considered null and void as it had no legal basis. The contract had already been terminated by him on 15 July 2015 and, therefore, the parties could not mutually terminate the same contract on 11 September 2015. Moreover, as to art. 6 of the termination agreement, the Claimant argued that the Respondent never provided him with the ITC and, consequently, the agreement never came into force.

12. In view of the above-mentioned circumstances, the Claimant requested outstanding salaries, on the basis of the employment contract, amounting to EUR 686,254 as well as compensation for breach of contract, on the basis of the employment contract, in the amount of EUR 1,616,182.

13. Subsequently, the Chamber noted that the Respondent held that it had made several payments to the Claimant before the termination of the contract and that it had properly issued the ITC for the Claimant’s transfer to Club F. Furthermore, the Respondent sustained that art. 3 par. 5 of the contract is not reciprocal, since it only provides for an advantage for the Claimant. With regard to the termination agreement, the Chamber noted that the Respondent argued that it does not contain a clause regarding its invalidity in case of non-payment by the Respondent. Finally, the DRC observed that the Respondent acknowledged a debt of EUR 178,752 towards the Claimant on the basis of the termination agreement.

14. In continuation, the DRC took note of the Claimant’s replica, in which he reiterated his position as to the signing of the termination agreement, and held that, regardless of the validity of art. 3 par. 5 of the contract, he would have had a just cause to terminate the contract considering that the Respondent was late with the payment of more than three monthly salaries.

15. The members of the DRC subsequently took note of the main arguments of the Respondent’s duplica, in which it restated the invalidity of art. 3 par. 5 of the contract and argued that it did not pressure the Claimant to sign the termination agreement.

16. Having established the aforementioned and considering the specific events in the present dispute, the DRC deemed that it first had to analyse the circumstances that had led the parties to conclude the termination agreement on 11 September 2015.

17. In this respect, the DRC first of all noted that the Claimant alleged that he was pressured to sign the termination agreement. In this regard, the members of the Chamber, referring to the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, stressed that the Claimant had not submitted any documentary evidence in support of his allegation.

18. In continuation, the members of the DRC were eager to point out that the Claimant had turned to the Respondent to request a written confirmation from the latter by 11 September 2015 that no dispute existed between the parties regarding the termination of the contract and that, in reply to this request, the Respondent had proposed to conclude the termination agreement.

19. At this point, the Chamber referred to the principle of contractual freedom and highlighted that the Claimant was not obliged to conclude the termination agreement with the Respondent. In this respect, the members of the Chamber deemed it fit to emphasize that a party signing a document of legal importance, as a general rule, does so on its own responsibility and is consequently liable to bear the possible legal consequences arising from the execution of such document.

20. Having established the foregoing, the Chamber turned its attention to the Claimant’s argument that the termination agreement never came into force as the Respondent had never provided him with the ITC for his transfer to Club F. In this respect, the Chamber pointed out that the issuance of the ITC is an electronic procedure that is conducted via the Transfer Matching System by the associations of the clubs involved in the transfer. In other words, the player is not involved in said process. In any case, the Chamber emphasized that, according to the information contained in the TMS, the ITC for the Claimant’s transfer from the Respondent to Club F was delivered to and received by the Football Association of country E on 11 September 2015, i.e. within the deadline stipulated in clause 6 of the termination agreement. Consequently, the Chamber decided to reject the Claimant’s argument in this respect.

21. In continuation, the Chamber decided to analyse the wording of the termination agreement, and noted that, in accordance with its art. 3, the Claimant had “discharged” the Respondent from all obligations derived from the employment contract in exchange for the payment of the amount of EUR 178,752.

22. Furthermore, the Chamber emphasized that art. 3 of the termination agreement stipulates that “in case this amount will not be paid (…) [the Claimant] has the right to claim to FIFA (only in the event [the Respondent] do no paid the amount of NET EUR 178,752)”.

23. Equally, the Chamber highlighted the wording of art. 4 of the termination agreement, according to which “the Parties also agree to change and accepts to not go to FIFA, CAS or other law organization to take the salaries and compensation those he deserved because of 2 months nonpaying compensation clause which is written on pre-contract signed on 20.01.2015. [The Respondent] will not pay any compensation about the agreements those are signed before between [the Claimant] and [the Respondent]”.

24. In continuation, the Chamber underlined the wording of art. 5 of the termination agreement, which clearly stipulates that “For the avoidance of doubt, the release shall include any and all claims, which were or could have been asserted in the proceedings before FF of country E, FIFA, CAS, UEFA or national courts (except the payment of NET EUR 178.752 above mentioned)”.

25. On account of the above, after having thoroughly analysed the wording of the relevant clauses of the termination agreement, in particular clause 5, the Chamber maintained that the Claimant had clearly released the Respondent from its obligations in connection with the employment contract, waived his right to claim salaries and compensation in connection with the employment contract and explicitly consented to include, in such waiver, any and all claims, “except the payment of NET EUR 178,752”.

26. At this point, the members of the Chamber referred to the Claimant’s argument that art. 3 of the termination agreement did not prevent him from claiming the full remaining value of the contract, otherwise it would have been clearly stipulated in said provision. In this respect, the Chamber was eager to point out that, whereas art. 3 of the termination agreement might not include any such wording, art. 4 and art. 5 on the contrary do undoubtedly exclude the possibility for the parties to claim salaries and compensation on the basis of the employment agreement.

27. Furthermore, the Chamber observed that the termination agreement does not contain any clause stipulating that in case of non-payment of the amount of EUR 178,752, said agreement would become null and void and the Claimant would be able to claim outstanding salaries and compensation based on the original employment contract.

28. In light of all of the above considerations, considering the particular factual circumstances as well as the documentation on file, the members of the Chamber unanimously determined that the parties had validly concluded the termination agreement, by means of which the Claimant released the Respondent of its obligations under the employment contract in exchange for the payment of the amount of EUR 178,752, waived his right to claim salaries and compensation in connection with the employment contract and explicitly consented to include, in such waiver, any and all claims, “except the payment of NET EUR 178,752”.

29. Considering the above conclusion, the members of the Chamber deemed it irrelevant to further analyse the circumstances surrounding the unilateral termination of the contract by the Claimant.

30. Having established the above, the Chamber turned its attention to the claim of the Claimant, who had only requested outstanding salaries and compensation on the basis of the employment contract. Taking into consideration the conclusion reached by the Chamber (cf. point II.28.) as well as the fact that the Claimant did not claim any amount on the basis of the termination agreement as he considered said agreement null and void, the DRC decided to reject the claim of the Claimant in full.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is rejected.

*****

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

www.tas-cas.org

For the Dispute Resolution Chamber:

Marco Villiger

Deputy Secretary General

Encl. CAS directives