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 June 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 June 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mario Gallavotti (Italy), member

Guillermo Saltos Guale (Ecuador), member

Johan van Gaalen (South Africa), member

Joaquim Evangelista (Portugal), 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 between the parties

I. Facts of the case

1. On 7 August 2015, the player of Country B, Player A (hereinafter: player or Claimant) concluded an employment contract (hereinafter: contract) with the club of Country D, Club C (hereinafter: club or Respondent) valid as from 7 August 2015 until 31 May 2016.

2. In accordance with the contract, the club undertook to pay the player a monthly remuneration in the amount of EUR 12,000, payable on the “last business day of the month”, in ten instalments between August 2015 and May 2016.

3. The contract contains the following clause: “The club shall provide 2 (two) round trip tickets to the Player’ home-town per season during 2015-2016 season”.

4. On 4 December 2015, the player sent a default notice to the club requesting payment of outstanding remuneration in the amount of EUR 44,000 within 7 days to the bank account of the player’s attorney. In this letter, the player stated that he would terminate the contract in case the club would not fulfil its financial duties within the set time-limit.

5. On 13 December 2015, the player terminated the contract in writing arguing that the club did not fulfil its financial duties since he did not receive any payments of the club after his default notice.

6. On 14 December 2015, the player sent another default notice to the club requesting payment of outstanding remuneration in the amount of EUR 44,000 within 10 days.

7. On 5 January 2016, the player lodged a claim against the club in front of FIFA arguing that the club is to be held liable for the early termination of the contract and requesting payment of the following monies:

- EUR 44,000 as outstanding remuneration for the months of August until November 2015 plus 5% interest p.a. as of the due dates;

- EUR 1,125.46 as reimbursement for flight tickets;

- EUR 72,000 as compensation for breach of contract plus 5% interest p.a. as from 13 December 2015;

- EUR 72,000 as additional indemnity based on Swiss law;

- 4,000 as “judicial costs and attorneyship fees”.

8. In his claim, the player held that he terminated the contract with just cause since he “waited for the payment a long time” and only after having sent a “warning” to the club.

9. Consequently, the player argued being entitled to receive his outstanding salaries as well as compensation for breach of contract.

10. In its reply, the club rejected the claim of the player.

11. The club argued that “The translation of the language of Country D approved by the notary clearly states that, starting from September 2015 to June 2016, 10 equal payments of 12,000 Euro is going to be paid to the player”.

12. In view of the above, the club maintained that only the amount of EUR 36,000 had fallen due at the time of the player’s default notice and termination and that said amount was remitted to the player as follows:

- EUR 15,000 in cash on 5 August 2015;

- EUR 4,000 to the player’s bank account on 4 December 2015;

- EUR 17,000 to the bank account of the player’s attorney on 11 December 2015.

13. The club argued that it tried to pay the amount of EUR 17,000 to the player’s account, but that it was “closed”. Therefore, it paid it to the bank account of the attorney of the player, which was mentioned in the player’s default notice of 4 December 2015.

14. In this regard, the club submitted a printout of an email, dated 11 December 2015, sent by the club’s attorney to the player’s attorney, stating that the amount of EUR 17,000 was remitted to the bank account of the attorney and that the debt towards the player was “concluded”.

15. Moreover, the club stated that the player terminated the contract without just cause since the outstanding amounts were in fact remitted. In this regard, the club requested that FIFA shall impose sporting sanctions on the player.

16. In his replica, the player reiterated his position and rejected the club’s argument regarding the duration and due dates of the contract by referring to the document on file.

17. The player held that the payment in the amount of EUR 15,000 was remitted on 5 August 2015, i.e. two days before the contract was signed. In this context, the player stated that said payment constitutes a “transfer payment” or “sign-on fee”, which is mentioned in language of Country D on the receipt.

18. Therefore, the player concludes that said payment was not related to the contract and cannot be taken into account regarding the outstanding salary payments.

19. Regarding the alleged payment of EUR 17,000, the player pointed out that said payment was not related to the outstanding salaries since there is “no explanation and/or address” on the receipt and that said payment was not related to “the case of the Claimant”.

20. In its duplica, the club rejected the player’s arguments and reiterated its position.

21. Regarding the player’s argument about the alleged sign-on fee, the club held that the translation from the language of Country D means “transfer down payment”, which indicates an “initial amount paid” or a “partial payment to reduce one’s indebtedness”. Furthermore, the club held that the bank document submitted contains the player’s name and therefore was related to the player’s case.

22. Regarding said down payment, the club pointed out that it was made as an advance payment in cash since the player just moved to Country D, needed money to settle and did not have a bank account yet.

23. Moreover, the club reiterated its argument that the salaries were due between September 2015 and June 2016.

24. According to the club, it answered the player’s default notice dated 4 December 2015, explaining that the above-mentioned payments were made and that he would not be entitled to outstanding remuneration.

25. In conclusion, the club held that the player acted in bad faith and without just cause when he terminated the contract even though it remitted all payments due.

26. According to the information contained in the Transfer Matching System (TMS), the player remained unemployed during the relevant period until 31 May 2016.

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 5 January 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: 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 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 5 January 2016, the 2015 edition of said regulations (hereinafter: 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, the DRC acknowledged that the parties signed an employment contract valid as from 7 August 2015 until 31 May 2016, according to which the Respondent undertook to pay to the Claimant the amount of EUR 12,000 as monthly remuneration, payable on the “last business day of the month” between August 2015 and May 2016.

6. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he terminated the contract with just cause due to the Respondent’s failure to comply with its financial obligations arising from the contract.

7. In this regard, the Chamber took note that the Claimant asks to be awarded the alleged outstanding remuneration, compensation for breach of the employment contract as well as an additional indemnity and reimbursement of his legal fees.

8. Moreover, the members of the DRC acknowledged that the Respondent rejected such argumentation and pointed out that no remuneration remained unpaid at the moment of the termination. Consequently, the club argued that the player had no just cause to terminate the contract.

9. On account of the above, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the Claimant had just cause to terminate the employment contract on 13 December 2015 and to decide on the consequences thereof.

10. Subsequently, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind 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.

11. In continuation, the DRC took note, that before terminating the contract on 13 December 2015, the Claimant had sent a default notice to the Respondent on 4 December 2015 requesting payment of EUR 44,000, corresponding to alleged outstanding remuneration.

12. From the documentation on file, the members of the DRC established that the Respondent had remitted various payments to the Claimant (cf. point I.15.). What is more, the DRC took note that the Claimant did not deny having received said payments, but argued that the payment of EUR 15,000 remitted to him on 5 August 2015 was not related to his salaries but rather constituted a “sign on fee” which was not mentioned in the contract.

13. Furthermore, the Chamber took note of the Claimant’s argumentation that that the payment received on 11 December 2015 was not related to the contract, since the receipt does not refer to salaries.

14. In view of the above, the DRC analysed the content of the contract and took note that no “sign-on fee” was agreed upon.

15. Moreover, the Chamber took note that the player did not deny having received the above-mentioned payments (cf. point I.15.). Recalling that the player bears the burden of proof to establish that said payments are extra-contractual, and since the player did not submit any evidence in support of his argument, the DRC could not relate said payments to anything else but the contract.

16. Consequently, the members of the Chamber decided to take into account the payments in question (cf. point I.15.) and established that since the Claimant was entitled to EUR 44,000 up to the termination on 13 December 2015, the amount of EUR 12,000, corresponding to the salary of November 2015, remained outstanding.

17. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria, which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

18. In this connection, and due to the payments received by the Respondent, the Chamber pointed out that, in the past, it had on numerous occasions upheld the unilateral termination of an employment contract by players who had depending on the particular circumstances of the relevant case at stake, not received their salaries for two or more months. Yet, a delay of one month could not be considered as a just cause.

19. In view of the conclusions above, the Claimant could not reasonably be permitted to expect continuation of the employment relationship and that he therefore had terminated the employment contract without just cause on 13 December 2015.

20. On account of the above, the Chamber decided to reject the player’s claim for compensation for breach of contract and the additional indemnity.

21. Consequently, on account of the above and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the club is liable to pay to the player the amount of EUR 12,000 with regard to the remuneration due to him for November 2015.

22. In addition, taking into consideration the player’s claim, the Chamber decided to award the player interest at the rate of 5% p.a. as of 1 December 2015, until the date of effective payment.

23. The DRC continued with rejecting the Claimant’s claim pertaining to flight tickets, since the player had not submit corroborating evidence, as he only submitted general documents and no evidence that the expenses indeed occurred.

24. In addition, as regards the claimed legal expenses, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request relating to legal expenses.

25. The members of the Chamber concluded their deliberations on the present matter by rejecting any further claim of the Claimant.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 12,000 plus 5% interest p.a. as of 1 December 2015 until the date of effective payment.

3. In the event that the aforementioned amount plus interest is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s 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.

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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