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 23 March 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 23 March 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Theo van Seggelen (Netherlands), member

Carlos González Puche (Colombia), member

Alejandro Marón (Argentina), 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 parties

I. Facts of the case

1. On an unspecified date, 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 1 July 2014 until 31 May 2017.

2. Pursuant to the contract, the Claimant was entitled to the following remuneration:

 2014-15 season: EUR 1,300,000;

 2015-16 season: EUR 1,000,000;

 2016-17 season: EUR 1,000,000 payable as follows:

- EUR 250,000 “will be paid on 5 September 2016” (free translation);

- EUR 750,000 payable in ten monthly instalments of EUR 75,000 from August 2016 until May 2017 “on the 30th day of each month” (free translation).

3. Furthermore, the contract provides for match bonuses in the amount of EUR 4,000 per match. In this regard, the contract specifies that the Claimant is entitled to receive 100% of said bonus if he is included in the starting eleven, 50% if he is coming in as a substitute and 25% if he is included in the eighteen players.

4. In addition, Special Provision e) of the contract states that “the [Claimant] accepts and undertakes by signing this agreement to comply with the decisions of the Board of Directors and the Professional Team Discipline & Punishment Regulations and acknowledges receipt of a copy of the Internal Disciplinary Directive which is remitted to him” (free translation).

5. The contract also states that the Claimant is entitled to a business flight ticket City E – City F – City E as well as a house and a car.

6. On 8 July 2016, the Respondent gave the Claimant permission to be absent until 1 August 2016 and informed him that he was authorised to negotiate with other clubs.

7. Also, on 8 July 2016, the Claimant sent a correspondence to the Respondent, requesting the latter to pay him outstanding remuneration in the amount of EUR 150,000. In his correspondence, the Claimant emphasised that he did not request any authorisation to be absent, stressing that he was back in City G and that “it is [the Respondent] who does not want [the Claimant] to stay in the club”. Furthermore, the Claimant insisted that he would not accept to be sent to the 2nd team.

8. On 8 August 2016, the Respondent extended the Claimant’s authorised leave until 31 August 2016.

9. On 8 September 2016, the Respondent requested the Claimant to justify his failure to attend training sessions on 1, 2, 3, 5 and 6 September 2016.

10. On 9 September 2016, the Claimant presented his defence. In this respect, the Claimant underlined that he informed the Respondent he would be absent on 1 September due to the birth of his child on 3 September 2016. The Claimant then asserted that on 5, 7 and 8 September 2016, he was not authorised to train with the team. In continuation, the Claimant sustained that on 9 September 2016, the Respondent offered him to terminate the contract, which he refused. Finally, the Claimant requested the payment of EUR 325,000 as outstanding remuneration.

11. Also on 9 September 2016, the Respondent informed the Claimant that it had been decided that he “will be left out of squad for indefinite time and [he] will continue [his] trainings in [the Respondent’s] facilities”. Furthermore, the Respondent provided the Claimant with a training programme and informed him that should he fail to follow it, the fines stipulated in the “Professional Team Discipline & Punishment Regulations” (hereinafter: the Disciplinary Regulations) would apply.

12. On 16 September 2016, the Respondent imposed a fine on the Claimant of EUR 100,000 due to the alleged failure to attend training sessions.

13. On 19 September 2016, the Claimant requested the Respondent to let him train with the team and to pay his outstanding dues. In this regard, the Claimant stressed that should the Respondent not do so, he would terminate the contract.

14. On 20 and 21 September 2016, the Claimant reiterated his requests.

15. On 22 September 2016, the Claimant terminated the contract.

16. On 11 October 2016, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting the following:

 EUR 404,500 as outstanding remuneration, broken down as follows:

- EUR 124,500 corresponding to his salaries for August 2016 and for 22 days of September 2016;

- EUR 250,000 corresponding to the down payment due on 5 September 2016;

- EUR 20,000 corresponding to four months of accommodation;

- EUR 10,000 as flight tickets;

 EUR 1,253,500 as compensation, broken down as follows:

- EUR 625,500 as residual salaries;

- EUR 8,000 as car allowance;

- EUR 40,000 corresponding to eight months of accommodation;

- EUR 80,000 corresponding to the average amount due as match bonuses for a season;

- EUR 500,000 as specificity of sport;

 EUR 30,000 as reimbursement of his legal costs

 An interest of 5% p.a. on the above-mentioned amounts as from 22 September 2016;

 The imposition of a sporting sanction on the Respondent.

17. In his claim, the Claimant explains that on 13 June 2016, the Respondent’s General Manager informed him that he was not in the “future plan of the team”. In this respect, the Claimant insists that the General Manager made clear that should he not find a new club, he would train with the reserve team.

18. In continuation, the Claimant reiterates the content of his previous correspondence, insisting that as from 10 September 2016, he was obliged to train alone six days per week with a “personal coach” at unreasonable hours.

19. Furthermore, the Claimant outlines that the Respondent did not include him in the list of players authorised to take part in the League of Country D.

20. In view of the above, the Claimant concludes that the Respondent was clearly not interested in his services.

21. In its reply, the Respondent first asserts that it has complied with its contractual obligations for the 2014-15 and 15-16 seasons.

22. In continuation, the Respondent states that the Claimant expressed his wish to leave, which is the reason why it gave him permissions to find a new club. The Respondent however sustains that, instead of looking for a new club, the Claimant “[was] just buying time and trying to be benefiting from his current contract”.

23. Furthermore, the Respondent alleges that without any justification, the Claimant did not come back on 1 September 2016 and failed to attend a friendly match on 3 September 2016. Consequently, and in accordance with its disciplinary code, the Respondent explains that a fine of EUR 100,000 as well as a temporary individual training programme was imposed on him.

24. The Respondent further argues that the “bonus” of EUR 250,000 “is remuneration for whole season of 2016-2017 and it would be paid to the [Claimant] if the [Claimant] stayed at the club until and of the season”. Moreover, the Respondent points out that the Claimant did not submit any evidence regarding his claims for outstanding accommodation costs and flight tickets.

25. Finally, and should FIFA consider that the Claimant had just cause to terminate the contract, the Respondent maintains that his claim for compensation related to accommodation, car allowance, match bonuses as well as specificity of sport should be rejected.

26. In spite of having been invited to do so, the Claimant did not submit any additional comments.

27. Having been invited to do so, the Claimant informed FIFA that he did not enter into any new employment contract after the termination of the contract with the Respondent.

II. Considerations of the Dispute Resolution Chamber

1. In a first instance, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 11 October 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) 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 in front of FIFA on 11 October 2016, the 2016 edition of said Regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the case as well as the documentation contained in the 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. In this respect, the DRC acknowledged that the parties signed an employment contract, valid as from 1 July 2014 until 31 May 2017. Furthermore, the Chamber also took note that on 22 September 2016, the Claimant terminated in writing the contractual relationship with the Respondent after having put the latter in default on several occasions.

6. Having said this, the Chamber took note of the Claimant’s affirmation according to which he had just cause to terminate the contract. In particular, the members of the Chamber noted that the Claimant asserts that the Respondent side-lined him and failed to pay his salary for August 2016, the down payment due on 5 September 2015 as well as four months of accommodation costs and several flight tickets.

7. On the other hand, the Chamber pointed out that the Respondent asserts having paid all the amounts actually due to the Claimant. In particular, the DRC observed that the Respondent argues that the the amount due on 5 September 2016 constitutes a bonus subject to the condition that the Claimant remains at the club until the end of the season. Furthermore, the members of the Chamber took note that the Respondent emphasises that the Claimant’s remuneration was reduced by means of a fine imposed on him due to his failure to attend training sessions on 1, 2, 3, 5 and 6 September 2016 in accordance with the Disciplinary Regulations.

8. At this stage, the Chamber focused on the first argument put forward by the Respondent. In doing so, the Chamber was eager to emphasise that the contract does not give room to interpretation in this regard, establishing a fixed due date at the beginning of the season, without any further condition. Consequently, the Chamber decided to reject the Respondent’s argument and came to the conclusion that on the date of termination, i.e. on 22 September 2016, the amount of EUR 250,000 had already fallen due.

9. In continuation, the members of the Chamber turned their attention to the fine imposed on the Claimant on 16 September 2016. In doing so, the Chamber first had to determine whether the Claimant had accepted to be bound by the Disciplinary Regulations of the Respondent. In this regard, the DRC referred to Special Provision e) of the contract which stipulates that “the [Claimant] accepts and undertakes by signing this agreement to comply with the decisions of the Board of Directors and the Professional Team Discipline & Punishment Regulations and acknowledges receipt of a copy of the Internal Disciplinary Directive which is remitted to him”. In view of the above, the members of the Chamber concurred that the Claimant expressly acknowledged being aware of the content of the Disciplinary Regulations and accepted to be bound by them.

10. In continuation, the Chamber went on to examine whether the fine was legitimately imposed on the Claimant. To this end, the members of the Chamber analysed whether the Claimant was allowed to be absent between 1 and 6 December 2016. In this regard, the DRC observed that Claimant only demonstrated that he was in Country B for the birth of his child on 2 September 2016; however, without submitting any document evidencing that the Respondent had authorised him to be absent for such an event. Therefore, 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 Chamber concluded that the Claimant failed to attend the training session held on 1, 2, 3, 5 and 6 September 2016 without authorisation. Furthermore, the Chamber outlined that the Respondent respected the Claimant’s right to be heard by providing him an opportunity to defend himself against the accusations before the imposition of the fine. In view of the above, the Chamber found that the Respondent was entitled to impose a fine on the Claimant for his absences from training.

11. Having established the above, the DRC had to assess whether the fine was imposed in accordance with the Disciplinary Regulations. In doing so, the Chamber observed that pursuant to art. 10.21 of said Regulations, an absence from training can be sanctioned with a deduction of 5% of the Claimant’s salary. In this respect, the members of the Chamber agreed that the subsequent absences on 2, 3, 5 and 6 September 2016 could not be deemed as repeated offences and that the five days of absence should be considered as one entire timeframe leading to a deduction of 5% of the Claimant’s salary. Indeed, the Chamber outlined that for an offence to be considered as a repeated offence, a previous and similar offence must have been sanctioned, or at least formally noted, whereas, in the case at hand, the Respondent sanctioned the absences on 1, 2, 3, 5 and 6 September 2016 at the same time, i.e. on 16 September 2016. Accordingly, the Chamber concluded that the imposition of a fine of EUR 100,000 was clearly disproportionate and that the Respondent was entitled to retain 5% of the Claimant’s monthly salary, i.e. EUR 3,750, due to his absence on 1, 2, 3, 5 and 6 September 2016.

12. On account of the aforementioned, and considering the deduction of 5% of the salary, the Chamber concluded that the Claimant’s salary for August 2016 as well as the down payment due on 5 September 2016 were outstanding at the time of the termination of the contract.

13. In continuation, the Chamber analysed the argument raised by the Respondent in order to justify the Claimant’s side-lining from the team. In particular, the DRC noted that the Respondent justifies this peculiar treatment by the fact that the Claimant had expressed his intention to leave the club. Without recognising the legitimacy of such a treatment, the Chamber pointed out that in any case the Respondent did not support its allegations by any concrete evidence. Accordingly, and in view of the content of art. 12 par. 3 of the Procedural Rules, the DRC concluded that the player’s side-lining was not objectively justified. Furthermore, the Chamber observed that the side-lining occurred between July and September, as it can be inferred from the documentation provided by the parties in this regard. The indicated period forms part of what is considered to be a crucial phase of preparation for the new season, during which all players are required to display their performance, in order to be able to undergo a selection by the club’s coach for the next season.

14. In view of the aforementioned fact, the DRC was of the opinion that the Claimant could have reasonably believed that the Respondent was no longer interested in his services for the upcoming season.

15. On account of all the above circumstances, and in particular considering the Claimant’s side-lining during a crucial period of the season as well as the Respondent’s failure to pay a significant part of the Claimant’s remuneration, the Chamber established that the Respondent had repeatedly been in breach of its contractual obligations towards the Claimant. Consequently, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 22 September 2016 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

16. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding amounts on the basis of the relevant employment contract.

17. First of all, reverting to the Claimant’s claim for outstanding remuneration, the DRC made reference to its previous considerations and recalled that at the time of the termination, i.e. on 22 September 2016, a total amount of EUR 321,250, corresponding to the Claimant’s salary for September 2016, as well as the down payment due on 5 September 2016, was outstanding. The DRC wished to recall that, from the aforementioned outstanding amounts, it deducted the amount of EUR 3,750 as per the fine corresponding to 5% of the Claimant’s monthly salary, as determined in its previous considerations.

18. Nevertheless, in the absence of any monetary value in the contractual condition relating to accommodation costs and flight tickets and of any documentary evidence in this connection, the Chamber had to reject the Claimant’s claim amounting to EUR 30,000 related to said fringe benefits.

19. Consequently, in accordance with the principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay the Claimant the amount of EUR 321,250 as outstanding remuneration.

20. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award him interest at the rate of 5% p.a. as from 22 September 2016.

21. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant / Counter-Respondent under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

22. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

23. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

24. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the contract until 31 May 2017, taking into account that the Claimant’s remuneration which had fallen due up until 22 September 2016 is included in the calculation of the outstanding remuneration. Therefore, the Chamber held that the remuneration due as of 22 September 2016 until 31 May 2017 should be taken into consideration to figure out the amount due as a compensation for breach of contract. In view of the above, the Chamber concluded that the amount of EUR 675,000 comprised of nine monthly salaries shall serve as the basis for the final determination of the amount of compensation for breach of contract.

25. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

26. The Chamber noted that it appears from the documentation on file that the Claimant did not sign any contract with a new club within the relevant period. Thus, the Claimant had apparently not been able to mitigate damages. In this context, the DRC declared that there is no remuneration to be taken into account in order to mitigate the amount of compensation for breach of contract.

27. In this respect and bearing in mind all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR 675,000 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

28. In addition, taking into account the Claimant’s request as well as its longstanding and well-established jurisprudence, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 11 October 2016, until the date of effective payment.

29. As regards the Claimant’s claim relating to the estimated loss of EUR 80,000 for bonuses relating to the 2016-17 season, the members of the Chamber stressed that the payment and the amount of such bonuses are linked to matches to be played in the future, i.e. after the termination of the relevant contract, and, therefore, are fully hypothetical. Consequently, the Chamber decided to reject such claim.

30. Equally, the DRC analysed the request of the Claimant corresponding to compensation based on the specificity of sport in the amount of EUR 500,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated the damage suffered or its quantity.

31. Moreover, the Chamber rejected any claim for reimbursement of his legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

32. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant / Counter-Respondent 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, outstanding remuneration in the amount of EUR 321,250 plus 5% interest p.a. on said amount as from 22 September 2016 until the date of effective payment.

3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract amounting to EUR 675,000 plus 5% interest p.a. on said amount as from 11 October 2016 until the date of effective payment.

4. In the event that the amounts plus interest due to the Claimant in accordance with the above-mentioned points 2. and 3. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received.

*****

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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives