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 13 October 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 13 October 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Wouter Lambrecht (Belgium), 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 partie

I. Facts of the case

1. On 23 August 2013, the Club of Country D, Club C (hereinafter: Club C or the Respondent), the Club of Country B, Club E and the Player of Country B, Player A (hereinafter: the Claimant), signed an agreement (hereinafter: the loan agreement) for the loan of the Claimant from Club E to Club C as from 24 August 2013 until 23 August 2015.

2. Pursuant to the loan agreement, Club C committed to pay the amount of EUR 2,000,000 to Club E as transfer compensation.

3. On 24 August 2013, the Claimant and Club C concluded an employment contract (hereinafter: the contract), valid as from 28 August 2013 until 27 August 2015.

4. In accordance with art. 5 of the contract, the Claimant was entitled to receive an annual salary of EUR 1,000,000 payable in twelve equal monthly instalments of EUR “83,334”.

5. Art. 5.3 of the contract further stipulates that “[the Claimant] is entitled with winning bonuses per Company policies”.

6. Furthermore, art. 6 of the contract titled “the [Respondent] Commitments” provides, inter alia, for the following:

“3. The [Claimant] will be granted a paid 30 days annual leave, and its date will be determined by agreement of the two parties

4. The [Respondent] provides the [Claimant] with a furnished accommodation to use during the period of the contract.

5. The [Respondent] will provide the [Claimant] with a proper car to be used during the period of this contract.

6. The [Respondent] shall provide the [Claimant] with five two-ways business-class air tickets annually from City F to City G.

7. To provide the [Claimant], his wife and his children with a health insurance, according to the [Respondent]’s regulations in force.

8. To provide the [Claimant] with a comprehensive insurance against injury, disability and death.

(…)

11. The [Respondent] pays the [Claimant]’s financial dues in case of injury in accordance with the terms of the comprehensive insurance policy”.

7. Besides, art. 7 of the contract which concerns the “Player Commitments” states, inter alia, the following:

“9. To inform the [Respondent] in case of any injury, and to subject to examination and treatment by the [Respondent]’s doctor or by any other body determined by the [Respondent].

10. To commit and be under the treatment procedures determined by the medical staffs which are determined by the [Respondent].

(…)

12. Not to contact or negotiate any other club for the duration of this contract and according to the regulations.

(…)

20. Not to retire by his desire for the duration of the contract”.

8. On 8 February 2014, the Claimant suffered a knee injury.

9. On 15 August 2014, the Respondent, the Claimant and his agent, Agent H, signed a document titled “Settlement Agreement” which reads as follows:

“WHEREAS

- On August 24, 2013, the [Respondent] and the [Claimant] entered into an employment agreement valid until August 27, 2015 (the ‘Employment Agreement’).

- Further to an injury occurred to the [Player] on 08 February 2014, the [Claimant] – after several surgery interventions and medical treatments – is still medically unfit to play at least until December 2014.

- The Parties intend to mutually regulate their current reciprocal obligations under the Employment Agreement.

The parties agree on the following:

1. The Employment Agreement shall remain valid until December 31, 2014, and the [Claimant] shall receive full salary until such date, on December 31, 2014, the employment agreement which signed On August 24, 2013 shall be terminated.

2. The [Claimant] shall be treated in Country B by a doctor of his choice and [the Respondent] shall reimburse a minimal cost, to be mutually approved.

3. Upon December 31, 2014, [the Respondent] can elect to maintain the validity of the Employment Agreement provided that the [Claimant] will be medically fit and also provided that upon the request of the [Respondent] the [Claimant] accepts to be transferred to another club.

4. The Agent hereby represents and guarantees the respect of the above obligations and both the [Claimant] and the Agent hereby declare that they are fully satisfied with the terms of this settlement agreement and have no claims toward the [Respondent]”.

10. On 31 December 2014, the Respondent remitted to the Claimant and his agent a document titled “Termination Notice” which states the following:

“Further to our settlement agreement signed on the 14th of August 2014, we hereby confirm that the Employment Agreement, as defined therein, will be terminating on December 31, 2014, and thereafter, [the Respondent] shall have no further obligation”.

11. On 5 January 2015, Club E informed the Claimant that the employment contract concluded between them was suspended until 23 August 2015 and that consequently it had no obligation towards him until that date.

12. On 14 April 2015, Club C sent a correspondence to the Claimant’s agent confirming that the employment contract was mutually terminated on 31 December 2014.

13. On 16 February 2016, the Claimant sent a default notice to Club C, stressing on the illegality of the settlement agreement as well as of the “termination notice” and therefore requesting the payment of EUR 500,000 as salaries and 60,939.88 as reimbursement of medical costs.

14. On 23 February 2016, Club C replied to the Claimant’s default notice, insisting that the latter and his agent expressly acknowledged that they were satisfied with the content of the settlement agreement. In this regard, the Respondent points out that the letter sent on 31 December 2014 constitutes a mere confirmation of the content of the settlement agreement. In addition, regarding the claim for reimbursement of medical costs, the Respondent alleges that its obligation was limited to the costs “mutually approved” up until 31 December 2014.

15. On 16 May 2016, the Claimant lodged a claim in front of FIFA against Club C for breach of contract, requesting the following:

- EUR 500,004 corresponding to the salaries from January 2015 until June 2015, plus 5% interest as of each due date (EUR 83,334 x 6);

- EUR 30,000 “to restore the balance between the parties”, plus 5% interest as of 31 December 2014;

- 60,939.88 as reimbursement of medical costs plus 5% interest as from “the date each receipt was paid until the date of effective payment”;

- EUR 500,004 as specificity of sport, plus 5% interest as of the date of the decision of the Dispute Resolution Chamber;

- EUR 140,000 as moral damages corresponding to 7% of the total value of the contract, plus 5% interest as of the date of the decision of the Dispute Resolution Chamber;

- “the DRC to order the Respondent to disclose how much it paid as bonus title to the players for title of Cup I in the season 2014/2015, and that such amount should also be paid to [him], plus 5% interest as from the date it was paid until the date of effective payment”;

- sporting sanctions to be imposed on the Respondent;

- the payment of his attorney fees “at the rate of 20% on the value of the conviction”.

16. In his claim, the Claimant first points out that the Respondent was incurring in a lot of expenses due to the injury, in particular considering the fact that it failed to enter into an insurance contract in his favour as stipulated in art. 6 of the contract. Therefore, and with the view of reducing such costs, the Claimant argues that the Respondent invited him to sign the settlement agreement which stipulates that “[t]he [Claimant] shall be treated in Country B by a doctor of his choice and [the Respondent] shall reimburse a minimal cost, to be mutually approved”. In this respect, stressing on the Respondent’s lack of interest in his recovery and the risks for his further career, the Claimant asserts that he had no other option but to sign the settlement agreement and go back to Country B. The Claimant further explains that on 31 December 2014 he was still far from being fully recovered.

17. In view of the above, the Claimant sustains that when the Respondent decided not “to maintain the validity of the Employment Agreement” on 31 December 2014, it did it due to his injury, which is not a just cause to terminate a contract as per the jurisprudence of the FIFA Dispute Resolution Chamber (DRC) and of the Court of Arbitration for Sport (CAS).

18. In continuation, the Claimant alleges that pursuant to the settlement agreement, the Respondent is the only party that has the capacity and power to terminate or continue with the employment relationship. Accordingly, the Claimant holds that the settlement agreement is potestative and must be deemed null and void in accordance with Law of Country J as well as DRC and CAS jurisprudence.

19. Besides, the Claimant states that considering the fact that the employment contract is subsidiary to the loan agreement, the termination of the former should only have been done as a consequence of the termination of the latter, which did not happen. In light of the above, the Claimant affirms that the early termination of the employment contract must be deemed invalid. Having said this, the Claimant insists that he was put in a very uncomfortable situation where both clubs refused to be in charge of his employment. Furthermore, the Claimant points out that his unclear contractual situation combined with his injury, annihilated his opportunities to find a new club. In this respect, the Claimant outlines that Club E eventually accepted to re-register him on 6 July 2015 based on the fact that the registration period in Country B was closing on 21 July 2015 and that a re-registration in August, i.e. after the original expiry of the loan, would have been impossible.

20. The Claimant then requests the reimbursement of the medical costs allegedly incurred by him between July 2014 and June 2015 and submitted the following documentation:

- Receipt dated 11 July 2014 in the amount of 8,000 related to “physiotherapy treatment from the period of 3 June 2014 until 10 July 2014”;

- Receipt dated 13 September 2014 in the amount of 4,600 related to “physical assessment – functional and to physiotherapy treatment from the period of 18 August until 13 of this year, for the after-surgery rehabilitation of the right knee, happened on 4 March 2014”;

- Receipt dated 3 October 2014 in the amount of 730 related to a “magnetic resonance on right knee”;

- Receipt dated 18 October 2014 in the amount of 5,300 related to “physiotherapy treatment from the period of 14 September until 18 October of this year, for the after-surgery rehabilitation of the right knee, happened on 4 March 2014”;

- Receipt dated 25 November 2014 in the amount of 4,700 related to “physiotherapy treatment from the period of 20 October until 25 November of this year, for the after-surgery rehabilitation of the right knee, happened on 4 March 2014”;

- Receipt dated 15 December 2014 in the amount of 2,300 related to “physiotherapy treatment from the period of 26 November until 15 December of this year, for the after-surgery rehabilitation of the right knee, happened on 4 March 2014”;

- Receipt dated 11 December 2014 in the amount of 250 related to a “bone scintigraphy examination”;

- Receipt dated 11 December 2014 in the amount of 950 related to a “magnetic resonance imaging on the knee”;

- Receipt dated 19 December 2014 in the amount of 2,000 related to a “medical examination”;

- Receipt dated 6 January 2015 in the amount of 500 related to a “medical appointment with orthopedist”;

- Receipt dated 6 January 2015 in the amount of 132.76 related to “hospital services”;

- Receipt dated 8 January 2015 in the amount of 2,000 related to “the anesthesia medical costs (…) administrated by in occasion of surgical intervention knee arthroscopy”;

- Receipt dated 8 January 2015 in the amount of 9,800 related to “the surgery”;

- Receipt dated 8 January 2015 in the amount of 2,940 related to “professional fees rendered as 1° auxiliary” by “Dr. K”;

- Receipt dated 8 January 2015 in the amount of 1,960 related to “medical fees of the surgical proceedings: arthroscopy on right knee”;

- Receipt dated 8 January 2015 in the amount of 400 related to “professional fees rendered as surgical instrumentation technician”;

- Receipt dated 13 January 2015 in the amount of 1,000 related to “10 physiotherapy sessions and rehabilitation of his right knee”;

- Receipt dated 23 January 2015 in the amount of 10,577.12 related to “hospital services”;

- Receipt dated 28 January 2015 in the amount of 1,000 related to“10 physiotherapy sessions and rehabilitation of his right knee”;

- Receipt dated 12 February 2015 in the amount of 1,000 related to“10 physiotherapy sessions and rehabilitation of his right knee”;

- Receipt dated 2 March 2015 in the amount of 1,000 related to“10 physiotherapy sessions and rehabilitation of his right knee”;

- Receipt dated 20 March 2015 in the amount of 1,000 related to“10 physiotherapy sessions and rehabilitation of his right knee”.

21. In addition, the Claimant sustains that the early termination deprived him from the benefits stipulated in art. 6 pars. 3, 4, 5 and 6 of the contract for a period of six months and consequently claims the amount of EUR 30,000, i.e. EUR 5,000 per month.

22. In its reply to the claim, the Respondent stresses that the settlement agreement was not only signed by the Claimant, but also by his agent.

23. The Respondent further points out that by means of the settlement agreement, the parties actually amended the contract, establishing a new date of expiry, i.e. 31 December 2014.

24. Subsequently, the Respondent argues that the settlement agreement did not grant it an option to unilaterally terminate the contract, but rather constitutes a mutual termination of the employment relationship. In this regard, the Respondent insists that the Claimant did not submit any element demonstrating that he was coerced to sign said agreement.

25. In continuation, the Respondent explains that in order to recoup part of the costs incurred for the transfer of the Claimant, i.e. the transfer compensation paid to Club E and the remuneration paid to the Claimant, it reserved the right to maintain the contractual relationship in case of transfer of the Claimant to another club. In this respect, the Respondent outlines that the possibility to maintain the original duration of the contract was subject to two cumulative conditions as per paragraph 3 of the settlement agreement: (i) the Claimant is fit to play and (ii) the Claimant accepts the transfer to another team. In view of above, and since the first condition was not met, the Respondent states that it sent a letter to both the Claimant and his agent to confirm the termination on 31 December 2014, to which none of them raised any objection. Besides, the Respondent rejects the Claimant’s assertion as to the alleged potestative nature of the abovementioned paragraph 3 of the settlement agreement. In this respect, the Respondent points out that the Claimant had the right to accept or deny his transfer to another club and, hence, the maintenance of the contractual relationship was subject to his approval.

26. Finally, the Respondent sustains that the Claimant is not entitled to the reimbursement of the medical costs allegedly incurred by him since they were not “mutually approved”.

27. In his replica, the Claimant reiterates that his injury was the main and only reason why the settlement agreement and the termination notice were made. In addition, the Claimant outlines that the Respondent demonstrated in its submission that it was no longer interested in his services but only in his market value.

28. Furthermore, the Claimant argues that his agent was not a party to the employment contract and that, therefore, the fact that he signed the settlement agreement is irrelevant.

29. Subsequently, the Claimant insists on the potestative nature of the settlement agreement, emphasising that only the Respondent could “elect to maintain the validity of the Employment Agreement”. The Claimant further rejects the Respondent’s argument that the maintenance of the contractual relationship was subject to his approval. In this respect, the Claimant underlines that he has actually never been in a position to express his consent since said condition was subsidiary to the main one, i.e. him being fit, which has never been fulfilled.

30. In continuation, the Claimant alleges that he was fully focused on his recovery and that is the reason why he did not complain about the termination back then, but points out that the default notice and subsequent claim in front of FIFA “clearly demonstrates his disagreement with what happened”.

31. In its final comments, the Respondent first insists on its good faith, pointing out that in spite of the fact that as per “the standard terms and condition of all football employment agreements and the relative collective bargain agreements”, it was entitled to terminate the contract due to the Claimant’s incapacity to play for more than six months, it accepted to maintain the relationship and kept paying his salaries for ten and a half months without receiving anything in return. In view of the above, the Respondent concludes that the settlement agreement was actually more favourable to the Claimant.

32. Finally, the Respondent argues that in virtue of the principle of severability, even if paragraph 3 of the settlement agreement was deemed potestative and therefore null and void, the other clauses would remain valid.

33. On 6 July 2015, the Claimant was re-registered with Club E based on the employment contract concluded by both parties on 1 July 2012 and valid until 30 June 2016. Pursuant to such contract, the Claimant was entitled to receive as from 1 July 2015 a monthly salary of 260,000. Nevertheless, on 1 January 2016, the Claimant and Club E concluded a new employment contract, valid until 31 December 2017, according to which the Claimant is entitled to a monthly salary of 160,000 for the 2016 season and 170,000 for the 2017 season.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or the 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 16 May 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 and 2 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 and a Club of 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 16 May 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. In this regard, the members of the Chamber acknowledged that the Claimant and the Respondent signed an employment contract initially valid as from 24 August 2013 until 23 August 2015. Furthermore, the Chamber observed that on 15 August 2014, the parties concluded a settlement agreement, which constitutes the document at the heart of the dispute.

5. In this context, the Chamber first reviewed the claim of the Claimant, who maintains that the settlement agreement grants a right of unilateral termination in favour of the Respondent only and must therefore be considered null and void due to its potestative nature. Furthermore, the DRC observed that the Claimant argues that he was obliged to sign the settlement agreement due to the Respondent’s lack of interest in his recovery and the risks for his further career. In view of the above, the Chamber took note that the Claimant considers that the Respondent terminated the contract on 31 December 2014 due to his injury and should therefore be held liable for breach of contract without just cause.

6. Having established the above, the Chamber proceeded to the analysis of the Claimant’s argumentation. In doing so, the members of the DRC first focused on the Claimant’s argument according to which he was coerced to sign the settlement agreement due to the Respondent’s disinterest in his recovery.

7. In this respect, the Chamber pointed out that the Claimant did not submit any relevant evidence in support of his assertion. Consequently, and after referring to 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, the Chamber held that the Claimant failed to satisfactorily carry the burden of proof regarding the alleged coercion.

8. At this stage, the Chamber was eager to emphasise that in accordance with longstanding and well-established jurisprudence, a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility.

9. In continuation, the DRC recalled the content of the settlement agreement which provides, inter alia, that “[t]he Employment Agreement shall remain valid until December 31, 2014, and the [Claimant] shall receive full salary until such date, on December 31, 2014, the employment agreement which signed On August 24, 2013 shall be terminated” and “[u]pon December 31, 2014, [the Respondent] can elect to maintain the validity of the Employment Agreement provided that the [Claimant] will be medically fit and also provided that upon the request of the [Respondent] the [Claimant] accepts to be transferred to another club”. In this respect, the Chamber was the unanimous opinion that the settlement agreement did not establish a right of unilateral termination to the Respondent, but rather set a new date of expiry of the contractual relationship, i.e. 31 December 2014, while reserving an option for the Respondent to extend the latter relationship under certain circumstances. As a consequence, the Chamber decided to disregard the argument raised by the Claimant and held that the contractual relationship was due to expire on 31 December 2014. In this regard, the DRC outlined that the wording of the correspondence addressed by the Respondent to the Claimant on 31 December 2014 does not give room to interpretation, the latter correspondence merely confirming the expiry of the contractual relationship.

10. Furthermore, and for the sake of completeness, the members of the Chamber wished to point out that the Respondent agreed to cover the Claimant’s medical expenses and kept complying in full with its obligations towards the Claimant for almost one year in spite of the fact that the latter was unable to render services.

11. On account of the aforementioned, and considering that the parties validly entered into the settlement agreement on 15 August 2014, the Chamber came to the conclusion that the contractual relationship ended on 31 December 2014 by expiry of its term and that consequently, none of the parties could be held liable for the termination thereof.

12. The foregoing having been said, the Chamber turned its attention to the Claimant’s claim for reimbursement of the medical costs incurred. In doing so, the DRC reverted once again to the content of the settlement agreement which states that “[t]he [Claimant] shall be treated in Country B by a doctor of his choice and [the Respondent] shall reimburse a minimal cost, to be mutually approved”. In this respect, the members of the Chamber concurred that by authorising the Claimant to consult the doctor of his choice in Country B, the Respondent implicitly agreed to cover the related costs. As a consequence, the Chamber decided to order the Respondent to reimburse the Claimant the medical costs incurred by the latter until the date of termination of the contractual relationship, i.e. 31 December 2014, which, according to the documentation provided by the Claimant, amount to 28,830.

13. In addition, taking into consideration the claim of the Claimant as well as the dates of the invoices submitted by the latter, the Chamber decided that the Respondent had to pay default interest at a rate of 5% as follows:

- 5% p.a. as of 12 July 2014 on the amount of 8,000;

- 5% p.a. as of 14 September 2014 on the amount of 4,600;

- 5% p.a. as of 4 October 2014 on the amount of 730;

- 5% p.a. as of 19 October 2014 on the amount of 5,300;

- 5% p.a. as of 26 November 2014 on the amount of 4,700;

- 5% p.a. as of 16 December 2014 on the amount of 2,300;

- 5% p.a. as of 12 December 2014 on the amount of 1,200;

- 5% p.a. as of 20 December 2014 on the amount of 2,000.

14. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is 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, the amount of 28,830 plus 5% interest p.a. until the date of effective payment as follows:

- 5% p.a. as of 12 July 2014 on the amount of 8,000;

- 5% p.a. as of 14 September 2014 on the amount of 4,600;

- 5% p.a. as of 4 October 2014 on the amount of 730;

- 5% p.a. as of 19 October 2014 on the amount of 5,300;

- 5% p.a. as of 26 November 2014 on the amount of 4,700;

- 5% p.a. as of 16 December 2014 on the amount of 2,300;

- 5% p.a. as of 12 December 2014 on the amount of 1,200;

- 5% p.a. as of 20 December 2014 on the amount of 2,000.

3. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned point 2 is 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.

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

5. The Claimant is directed to inform the Respondent 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:

Marco Villiger

Deputy Secretary General

Encl. CAS directives