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 30 June 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 June 2017,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (Netherlands), member

Zola Majavu (South Africa), member

on the claim presented by the player,

Player A, Country B,

as Claimant / Counter-Respondent

against the club,

Club C, Country D,

as Respondent / Counter-Claimant

with the club,

Club E, Country F

as Intervening Party

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 31 August 2015, the Player of Country B, Player A (hereinafter: the Claimant / Counter-Respondent), and the Club of Country D, Club C (hereinafter: the Respondent / Counter-Claimant), signed an employment contract (hereinafter: the contract) and an appendix (hereinafter: the appendix) both valid as from the date of signature until 31 May 2016, with an extension option for the 2016/2017 season.

2. According to art. i of the appendix of the contract, the Respondent / Counter-Claimant undertook to pay the Claimant / Counter-Respondent inter alia :

 EUR 4,000 as monthly salary;

 EUR 5.50 for every minute of every official away match during which the Claimant / Counter-Respondent is on the field, “calculated at the end of each month and payable with the monthly salary”;

 EUR 2.70 for every minute of every official home match during which the Claimant / Counter-Respondent is on the field, “calculated at the end of each month and payable with the monthly salary”;

 a flat and a car.

3. Art. f of the appendix establishes that “the player will not benefit the remunerations above mentioned in the case of engagement in friendly matches or training matches.”

4. Art. e) lit. n) of the contract states that “In case of failure to fulfil obligations by the player, the player is obliged to pay a contractual penalty rate of 50% of the total amount of the contract, to the club.”

5. According to art. i) of the contract:

“a. If the player is unable to participate in the club activities, due to suffering an illness or accident, the player is obliged to immediately notify the trainer of the first team of the club and the administrative staff of the club.

b. The player is obliged to submit to the administration of the club all medical documentation related to the health assessment conducted in case of suffering the relevant illness or accident, no later than two days (2) of suffering the illness or the accident (…)”

6. On 22 November 2015, the Claimant / Counter-Respondent sent the Respondent / Counter-Claimant a default notice, via the Football Association of Country D, pointing out that there were unpaid salaries and bonuses pertaining to the months of September and October 2015 for the total amount of EUR 9,849.50, requesting the Respondent / Counter-Claimant to pay within 10 days and seeking to be provided with housing and a car as provided for in the contract. In the same letter, the Claimant / Counter-Respondent also reminded the Respondent / Counter-Claimant that he flew to Country B for a medical examination with the alleged authorization of the Respondent / Counter-Claimant after an injury, which occurred on 17 October 2015 during a match.

The Claimant / Counter-Respondent further informed the Respondent / Counter-Claimant that he had to undergo surgery for an otitis, which would require a two month medical leave, and that, consequently, he would be back at the club at the earliest on 1 December 2015. The Claimant / Counter-Respondent submitted a medical document, dated 28 October 2015 and signed by a Doctor of Country B, indicating that the Claimant / Counter-Respondent is on illness for surgical intervention until 6 December 2015.

7. On 27 December 2015, the Claimant / Counter-Respondent sent the Respondent / Counter-Claimant another default notice via the Football Association of Country D, asking it to pay his yet unpaid salaries and bonuses of September and October 2015, plus his salaries of November and December 2015 for a total amount of EUR 17,849.50 within 5 days.

8. On 3 January 2016, the Claimant / Counter-Respondent lodged a claim in front of FIFA against the Respondent / Counter-Claimant for breach of contract, requesting to be awarded the total amount of EUR 37,849.50, which was detailed as follows:

- EUR 17,849.50 as outstanding remuneration:

o Salaries:

 EUR 4,000 corresponding to the salary of September 2015, plus interest of 5 % p.a. as of 1 October 2015,

 EUR 4,000 corresponding to the salary of October 2015, plus interest of 5 % p.a. as of 1 November 2015,

 EUR 4,000 corresponding to the salary of November 2015, plus interest of 5 % p.a. as of 1 December 2015,

 EUR 4,000 corresponding to the salary of December 2015, plus interest of 5 % p.a. as of 1 January 2016,

o Bonuses:

 EUR 495 as bonus for having played 90 minutes, i.e. EUR 5.50 x 90, during an away match against Club G on 12 September 2015, plus interest of 5 % p.a. as of 1 October 2015;

 EUR 495 for having played 90 minutes, i.e. EUR 5.50 x 90, during an away match against Club H on 20 September 2015, plus interest of 5 % p.a. as of 1 October 2015;

 EUR 243 for having played 90 minutes, i.e. EUR 2.70 x 90, during a match against Club J on 26 September 2015, plus interest of 5 % p.a. as of 1 October 2015;

 EUR 495 for having played 90 minutes, i.e. EUR 5.50 x 90, during an away match against Club K on 4 October 2015, plus interest of 5 % p.a. as of 1 November 2015;

 EUR 121.50 for having played 45 minutes, i.e. EUR 2.70 x 45, during an away match against Club L on 1 November 2015, plus interest of 5 % p.a. as of 1 November 2015;

- EUR 20,000 as compensation, corresponding to his salaries from January 2016 to May 2016, plus interest of 5 % p.a. as of 3 January 2016;

- In addition, the Claimant / Counter-Respondent asked that sporting sanctions be imposed on the Respondent.

9. In his arguments, the Claimant / Counter-Respondent claimed that the Respondent / Counter-Claimant did not pay him any remuneration since the beginning of the contract and did not provide him with housing and that therefore, the Respondent / Counter-Claimant is to be held liable for breach of contract.

10. The Claimant / Counter-Respondent further claimed that he flew to Country B for a medical examination with the alleged authorisation of the Respondent / Counter-Claimant after an injury, which he allegedly sustained during a match on 17 October 2015. The Claimant / Counter-Respondent raised that he informed the Respondent / Counter-Claimant of his medical leave by letter dated 22 November 2016.

11. In reaction to the Claimant / Counter-Respondent’s claim, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent for breach of contract, claiming payment of compensation in the total amount of EUR 18,000, corresponding to 50 % of the total contractual remuneration of the Claimant / Counter-Respondent, based on art. e) lit. n) of the contract, as well as that disciplinary measures be imposed on the Claimant / Counter-Respondent.

12. In its argumentation, the Respondent / Counter-Claimant claimed that the Claimant / Counter-Respondent breached the contract by leaving the club on 17 October 2015 without authorisation and by not informing the Respondent / Counter-Claimant of his medical examination within the deadline of 2 days foreseen in art. i) of the contract. The Respondent / Counter-Claimant added that the Claimant / Counter-Respondent could not have suffered any injury during the period of football activity with the club, since he left it on 17 October 2015 and since the medical exam undertaken by the Claimant / Counter-Respondent occurred on 28 October 2015 only, as noted in the document submitted by the Claimant / Counter-Respondent.

13. The Respondent / Counter-Claimant further stated that it could not contact the Claimant / Counter-Respondent since he had not given any contact details when he left the club. The Respondent / Counter-Claimant added that, on 30 October 2015, it informed the Football Association of Country D and FIFA in writing that the Claimant / Counter-Respondent had been absent since 20 October 2015. In this regard, the Respondent / Counter-Claimant submitted a letter dated 30 October 2015 addressed to FIFA and another untranslated letter, signed and bearing its stamp.

14. In his reply, the Claimant / Counter-Respondent raised that the counterclaim of the Respondent / Counter-Claimant has been received after the closure of the investigation and after the deadline given by FIFA and that, therefore, it should be rejected.

15. Additionally, the Claimant / Counter-Respondent maintained his previous argumentation, claiming that the Respondent / Counter-Claimant breached the contract by failing to pay his remuneration and by not contacting him during his sick leave.

16. Moreover, the Claimant / Counter-Respondent admitted that he only had a verbal authorisation of the Respondent / Counter-Claimant to return to Country B for his medical treatment. The Claimant / Counter-Respondent pointed out that there is, however, no doubt that the Respondent / Counter-Claimant received his two default notices, since they were both sent via the Football Association of Country D, due to the impossibility to obtain the contact details of the Respondent / Counter-Claimant. The Claimant / Counter-Respondent further added that the Respondent / Counter-Claimant did not contact him following his departure, despite being aware of his injury which allegedly occurred during a match against Club L on 17 October 2015. In addition, the Claimant / Counter-Respondent held that his personal medical file proved his incapacity to work. In this regard, the Claimant / Counter-Respondent submitted a letter of a Doctor of Country B dated 20 April 2016, certifying that he received the Claimant / Counter-Respondent for “pain in his adductor muscle” on 23 October 2015.

17. The Claimant / Counter-Respondent further highlighted that there is no evidence that FIFA received the Respondent / Counter-Claimant’s letter dated 30 October 2015 and that the letter allegedly sent to the Football Association of Country D is not translated, and that therefore, these should not be taken into account.

18. In its final position, the Respondent / Counter-Claimant asserted that its counterclaim was lodged before the closure of the investigation and therefore cannot be rejected.

19. Additionally, the Respondent / Counter-Claimant maintained its previous argumentation, stating that the Claimant / Counter-Respondent breached the contract by leaving the Respondent / Counter-Claimant without authorisation and by waiting almost two months to inform the Respondent / Counter-Claimant. The Respondent / Counter-Claimant further stated that the Claimant / Counter-Respondent did not inform the Respondent / Counter-Claimant of the existence of any physical issues during the contractual period and that the medical documents established that the medical examinations undertaken by the Claimant / Counter-Respondent were not linked to his sporting activities. The Respondent / Counter-Claimant raised that the departure of the Claimant / Counter-Respondent was the result of his physical condition.

20. The Claimant / Counter-Respondent claims to have remained unemployed between 27 December 2015 and 31 May 2016. According to the information contained in the Transfer Matching System (TMS), the Claimant / Counter-Respondent signed a contract with the Club of Country F, Club E on 28 July 2016, i.e. after the ordinary date of expiry of the contract.

21. Despite having being invited to do so, Club E did not make any comments.

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 3 January 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 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 of Country B, a Club of Country D and a Club of Country F.

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 3 January 2016, the 2015 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. In view of the foregoing considerations, 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 on file. 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. Subsequently, the DRC took note that according to the Claimant / Counter-Respondent, the counterclaim of the Respondent / Counter-Claimant was received after the closure of the investigation and after the deadline given by FIFA and that, therefore, it should be rejected.

6. In this regard, and before entering the analysis of the substance of the matter, the DRC, considering its obligation to examine ex officio any preliminary issue which might have an impact on the admissibility of the claims, deemed it appropriate to examine if the Respondent / Counter-Claimant’s counter-claim could be possibly inadmissible.

7. In this respect, after having taken note of the correspondence exchanged during the proceedings in the present matter, the members of the Chamber established that the Respondent / Counter-Claimant’s counterclaim was sent to FIFA by post prior to expiry of the time limit set by FIFA, i.e. 23 March 2016, and is, therefore, admissible (cf. art. 16 par. 2 and 3 of the Procedural Rules).

8. Having established the above, the DRC then acknowledged that the Claimant and the Respondent signed an employment contract valid from 31 August 2015 until 31 May 2016.

9. Subsequently, the DRC took note of the Claimant / Counter-Respondent’s claim according to which, on 22 November 2015, the Claimant / Counter-Respondent sent the Respondent / Counter-Claimant a default notice via the Football Association of Country D, requesting inter alia the payment of remuneration pertaining to the months of September and October 2015 and highlighting that he flew to Country B, to seek medical advice after an alleged injury which occurred during a match on 17 October 2015 and that he would be back to the club at the earliest on 1 December 2015. On this occasion, the Claimant / Counter-Respondent submitted a medical document dated 28 October 2015. Having received no reply to his default notice, the Claimant / Counter-Respondent sent another default notice on 27 December 2015, asking to be paid his salaries and bonuses due as of 1 September 2015. Following those two default notices which remained unanswered, the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant in front of FIFA, claiming that the Respondent / Counter-Claimant failed to I) pay him his remuneration, II) to provide him with accommodation from the beginning of the contract, III) to contact him during his sick leave. Therefore, according to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant is to be held liable for breach of contract.

10. The Respondent / Counter-Claimant, for its part, lodged a counter-claim against the Claimant / Counter Respondent, maintaining that the employment contract was terminated by the Claimant / Counter-Respondent without just cause as a result of the latter’s absence from the club as of 17 October 2015 without its authorisation or just cause.

11. Having established the aforementioned, the Chamber highlighted that the underlying issue in this dispute, considering the conflicting positions of the parties, was to determine whether the employment contract had been prematurely and unilaterally terminated with or without just cause by either of the parties. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that is to be held liable for the breach of the employment contract without just cause.

12. In continuation, the Chamber, first and foremost, acknowledged that it has remained undisputed that the Claimant / Counter-Respondent was absent from the club as of 17 October 2015, which fact forms the basis of the counterclaim for breach of contract put forward by the Respondent / Counter-Claimant.

13. According to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent left the club on 17 October 2015 without its authorisation or just cause. The Respondent / Counter-Claimant added that the Claimant / Counter-Respondent did not inform it of his medical situation and of his contact details. Furthermore, the Respondent / Counter-Claimant alleged that it had informed the Football Association of Country D of the Claimant / Counter-Respondent’s absence via letter dated 30 October 2015.

14. The Claimant / Counter-Respondent, for his part, held that his absence was justified for medical reasons, in particular, in the light of the fact that the Respondent / Counter-Claimant has been well aware of the fact that he was injured during a match against Club L on 17 October 2015. The members of the Chamber noted that, according to the Claimant / Counter-Respondent, for these reasons, he had been verbally authorised by the Respondent / Counter-Claimant to be absent from the club and to go back to Country B to be treated. The Chamber took due note of the documentation presented by the Claimant / Counter-Respondent in this regard, i.e. a copy of the correspondence allegedly sent by the Claimant / Counter-Respondent to the Respondent / Counter-Claimant in November and December 2015 as well as of medical certificates issued during said period of time.

15. In this context, the members of the Chamber turned their attention to the wording of art. i) of the contract, which states that “a. If the player is unable to participate in the club activities, due to suffering an illness or accident, the player is obliged to immediately notify the trainer of the first team of the club and the administrative staff of the club. b. The player is obliged to submit to the administration of the club all medical documentation related to the health assessment conducted in case of suffering the relevant illness or accident, no later than two days (2) of suffering the illness or the accident (…)”

16. In continuation, 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 / Counter-Respondent had not presented any documentary evidence corroborating his assertion that the Respondent / Counter-Claimant had authorised him to be absent from the club as of 17 October 2015. It was, in particular, noted that the Claimant / Counter-Respondent had not presented any proof of having notified the Respondent / Counter-Claimant of any medical attestations prior to the default notice that he sent to the Respondent / Counter-Claimant on 22 November 2015.

17. With regard to the Claimant / Counter-Respondent’s claim that the Respondent / Counter-Claimant knew of his injury, the Chamber was of the opinion that, in any event, and assuming this was indeed the case, this does not prove that the Claimant / Counter-Respondent was indeed authorised by the Respondent / Counter-Claimant to be absent from the club since 17 October 2015.

18. The members of the Chamber then turned their attention to the arguments raised by the Claimant / Counter-Respondent, who maintains that the Respondent / Counter-Claimant is to be held liable for breach of contract for having failed to remit his remuneration between September and December 2015 and to provide him with accommodation.

19. In this context, the members of the Chamber recalled, as stated above, that the Claimant / Counter-Respondent had not been able to provide evidence demonstrating that he was authorised by the Respondent / Counter-Claimant to be absent from the club as of 17 October 2015. Accordingly, the members of the Chamber took into consideration that the Respondent / Counter-Claimant may have had valid reasons not to proceed with the payment of the Claimant / Counter-Respondent’s remuneration as of said date.

20. Furthermore, and in response to the Claimant / Counter-Respondent’s claim that the Respondent / Counter-Respondent had also not paid him his salary of September 2015, i.e. salary due before he left the club, the Chamber deemed it fit to point out that, in general, the non-payment of one month of salary cannot be considered as sufficient reason for a player to cease rendering his services to a club.

21. On account of the above, the members of the Chamber concluded that the Claimant / Counter-Respondent’s assertions with respect to outstanding salaries and accommodation could not be upheld and decided that the Claimant / Counter-Respondent is to be held liable for the early termination of the employment contract without just cause on 17 October 2015, having left the club on that date without authorisation.

22. In continuation, the Dispute Resolution Chamber focused on the potential consequences for the Claimant / Counter-Respondent of said termination of contract without just cause.

23. In this regard, the DRC acknowledged that it remained uncontested that the Respondent / Counter-Claimant did not react to the Claimant / Counter-Respondent’s default notices dated 22 November 2015 and 27 December 2015 despite the Claimant / Counter-Respondent having communicated his lawyer’s contact details. Furthermore, in the letter it allegedly sent to the Football Association of Country D on 30 October 2015, the Respondent / Counter-Claimant merely indicated the absence of the Claimant / Counter-Respondent, but did not ask for his return. The DRC concluded, therefore, that the Respondent / Counter-Claimant did not demonstrate that it wished that the Claimant / Counter-Respondent returned to the club.

24. The Chamber thus concluded that the Respondent / Counter-Claimant was not interested in the services of the Claimant / Counter-Respondent as of the date the latter left the club, and as a consequence the Respondent / Counter-Claimant is not entitled to receive any compensation for breach of contract from the Claimant / Counter-Respondent.

25. The members of the Chamber, however, took into consideration that it remained uncontested that the Claimant / Counter-Respondent trained with the Respondent / Counter-Claimant until 17 October 2015. Therefore, the Chamber considered that the Claimant / Counter-Respondent is entitled to be remunerated for the period of time running from 1 September 2015 to 17 October 2015.

26. On account of the above, the DRC concluded that the Claimant / Counter-Respondent / Counter-Claimant is entitled to receive the portion of the salary for the aforementioned period, namely EUR 6,193.

27. Consequently and taking into account all the above-mentioned facts and considerations, the Chamber decided that the Respondent / Counter-Claimant is liable to pay to the Claimant / Counter-Respondent the amount of EUR 6,193.

28. In addition, taking into consideration the Claimant / Counter-Respondent’s claim, the Chamber decided to award the Claimant / Counter-Respondent interest at the rate of 5% p.a. on the amount of EUR 6,193 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 1 October 2015 on the amount of EUR 4,000;

b. 5% p.a. as of 18 October 2015 on the amount of EUR 2,193.

29. In continuation, reverting to the Claimant / Counter-Respondent’s claim for match bonuses, the DRC took into account the documentation presented by the Claimant / Counter-Respondent in support of his petition and concluded that the Claimant / Counter-Respondent had not fully substantiated his claim with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. Consequently, the DRC decided to reject this part of the Claimant / Counter-Respondent’s claim.

30. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the claim of the Claimant / Counter-Respondent is partially accepted and that the counterclaim of the Respondent / Counter-Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.

2. The claim of the Respondent / Counter-Claimant, Club C, is admissible.

3. The claim of the Respondent / Counter-Claimant is rejected.

4. The Respondent / Counter-Claimant is ordered to pay to the Claimant / Counter-Respondent I, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 6,193 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 1 October 2015 on the amount of EUR 4,000;

b. 5% p.a. as of 18 October 2015 on the amount of EUR 2,193.

5. In the event that the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

6. Any further claim lodged by the Claimant / Counter-Respondent I is rejected.

7. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

*****

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:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives