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 18 May 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 18 May 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

John Bramhall (England), member

Takuya Yamazaki (Japan), member

Mohamed Al Saikhan (Saudi Arabia), 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

between the parties

I. Facts of the case

1. On 9 November 2014, the Player of Country B, Player A (hereinafter: the Claimant or player), and the Club of Country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract), valid from 1 December 2014 until 30 November 2015.

2. According to clause 2.1 of the contract, the Claimant was entitled to a salary in accordance with Schedule A, which establishes a monthly salary of USD 15,000.

3. According to clause 2.3 of the contract, the Claimant was entitled to other benefits in accordance with Schedule B, which establishes inter alia as benefits:

- 2 return flight tickets;

- Accommodation & transport.

4. Clause 6 of the contract establishes a “Grievance Procedure” as follows:

- In case of any “grievance”, a formal written notice of complaint must be submitted to the team manager within 7 days of the grievance arising;

- If it is not resolved to the player’s satisfaction within 7 days after the notice is given, a formal written notice of the grievance must be given to the Secretary of the club to consider the matter. The matter shall be considered at the next club’s meeting or within 14 days after receipt of the notice, whichever is earlier;

- If the grievance is not resolved by the club or the club’s decision does not satisfy the player, he may appeal to FIFA.

5. Clause 8.2 of the contract establishes that the contract may be terminated at any time by mutual consent subject to terms and conditions agreed between the parties.

6. Clause 8.4(i) of the contract establishes that “This Contract may be terminated immediately by the [Respondent] without notice and the [Respondent] is released from all obligations under this Contract if: Player is charged under Clause 4.2 (unsatisfactory performance) or Clause 5 (discipline), or if Player and the [Respondent] mutually agree to end the Contract.”

7. Clause 8.5 of the contract establishes that “When the Player, without any valid reason, terminates this Contract one-sided or without the mutual agreement with the [Respondent], then the [Respondent] has the right to claim compensation for the total remaining period of the Contract not served.

f) When the [Respondent], without any valid reason, terminates this Contract one-sided or without the mutual agreement with the Player, then the Player has the right to claim salary and other benefits payment for the total remaining period of the Contract not served and the Player is released from all the administration aspect of the Contract”.

8. On 14 April 2015, the Respondent informed the Claimant in writing that, at a management meeting on 5 April 2015, the Respondent had agreed to deregister him from the League E Team 2015. Moreover, the Respondent informed the Claimant that “In accordance with that, you still bound by Foreign Player Contract Agreement with Football Association F and salary payment still been paid as long as you did not breach the term of the contract.

Therefore, refer to the Foreign Player’s Contract, Article 3.2 you are required to attend a training with Cup J Team effective immediately”.

9. On 20 May 2015, the Respondent issued a letter addressed to the Claimant, referring to a “Discipline and Disciplinary Procedure”, by means of which the Respondent addressed the absence of the Claimant from training and other matters and requested an explanation within 7 days. In particular, the Respondent attached a report signed by the head coach regarding the Claimant’s absences and his refusal to pay a fine.

10. On 26 May 2015, the Claimant replied to the Respondent’s letter explaining the reasons for his absences. In particular, the Claimant detailed the following:

- Regarding the period between 31 December 2014 and 5 January 2015, the Claimant held that “With approval from the club coach I was allowed to attend my brothers wedding. Let it be marked that at this point I was on a holiday visa and had not received a work permit or adjusted visa status by FOOTBALL ASSOCIATION F. Upon arrival back to Country D I was detained by the department of immigration of Country D at the airport for 6 days from 31/12/2014 to 5/1/2015 which the office of FOOTBALL ASSOCIATION F, team manager and head coach was made aware of”.

- He missed training on 23 February 2015 due to the arrival of his family, with the approval of the coach.

- He denies having missed training on 21 March and 6 April 2015.

11. On 15 July 2015, the Respondent terminated the contract in writing, stating that the Disciplinary Committee at its meeting held on 13 July 2015 concluded to reject the explanations of the Claimant and decided on the termination of the contract.

12. On 16 July 2015, the Claimant reacted via email, stating that, in accordance with the contract, two written warnings had to be issued under the discipline clause before termination. Moreover, the reasons for termination were unclear. Therefore, the Claimant stated being entitled to a grievance procedure as per clause 6 of the contract.

13. On 23 July 2015, the Respondent replied via email stating that it had decided to confirm the decision to terminate the contract.

14. On 3 December 2015, the Claimant signed an employment contract with the Club of Country G, Club H, valid from 1 January 2016 until 31 December 2016, being entitled to an annual gross amount of USD 105,000, divided in equal “semi-monthly instalments on the 15th and end of each month”.

15. On 3 February 2016, the Claimant and the Respondent signed a document named “League of country D Agreement to Terminate” (hereinafter: the form XXX), which establishes that the parties agreed to terminate the contract in accordance with clause 8.2 of the contract with effect as from 15 July 2015 with the following conditions:

“i. Termination of the contract by mutual agreement

Ii. Fulfilled the obligation arising from agreement without any financial claims by each other

iii. I promise not to sue or bring the case to the arbitration court of FOOTBALL ASSOCIATION OF COUNTRY D or FIFA”.

16. On 1 March 2016, the Claimant lodged a claim against the Respondent, maintaining that the Respondent terminated the contract without just cause and asking to be awarded the total amount of USD 92,740, composed as follows:

- USD 82,500 corresponding to USD 75,000 as the remaining value of the contract from 15 July 2015 until 30 November 2015 plus “additional 10% monthly interest”;

- USD 7,500 corresponding to 5 months of housing and transport (5 x USD 1,500);

- Reimbursement of a return air ticket in the amount of USD 2,740 as one out of the two tickets established in the contract, submitting a receipt issued by a travel agency dated 29 July 2015.

17. According to the Claimant, on 16 March 2015, he was deregistered by the Respondent from the league to play for the “cup J team”. Subsequently, on 15 July 2015, the contract was terminated by the Respondent without just cause. According to the Claimant, the reasons given by the coach were unclear and biased and he fully explained in writing and in person his absences from training.

18. Moreover, he held having being evicted from the apartment, which caused great stress to him and his family. Finally, he stated that the Respondent did not pay the flight tickets agreed for him to return home.

19. The Respondent submitted its position, rejecting the Claimant’s claim. In this respect, the Respondent held that the registration of the Claimant was cancelled on 5 April 2015 upon a decision of the team management, which considered the Claimant’s performance as unsatisfactory for not attending trainings during February and March 2015.

20. Moreover, the Respondent highlighted that, on 9 April 2015, the coach issued a report on the Claimant’s discipline listing his absences.

21. In this context, the Respondent held having invited the Claimant on 20 May 2015 to provide explanations regarding his absences, to which he responded.

22. With regard to the Claimant’s absences, the Respondent further stated that the Claimant was detained by the Ministry of Health of Country D from 1 to 5 January 2015, because he had no vaccination certificate for yellow fever.

23. Moreover, the Respondent affirmed having paid all travel ticket expenses, submitting the same travel receipt as the one presented by the Claimant.

24. According to the Respondent, the Disciplinary Committee found the reasons given by the Claimant at its meeting “unreasonable” and therefore, on 15 July 2015, the Respondent terminated the contract in accordance with clause 8.4(i) of the contract.

25. The Respondent further maintained that, on 2 February 2016, the League K asked it to fill a third-party declaration in the scope of an International Transfer Certificate (ITC) request for the Claimant, to which the Respondent replied sending the form XXX to be signed by the Claimant if he agreed. Subsequently, the Respondent received the form XXX signed by the Claimant, establishing the mutual termination of the contract.

26. The Claimant submitted his replica, stating that he was presented a number of documents to sign in order for the ITC to be issued, which included the form XXX. Since he had to sign a large number of documents in the context of obtaining his ITC, which were given to him by the LEAGUE K, he was not aware that he was signing an agreement on the mutual termination of the contract.

27. The Claimant further stated that after his agent brought to his attention that he had signed a waiver towards the Respondent, he tried to “retract” the email sent with all documents for the issuance of the ITC, without success. The Claimant affirmed that he signed the document because he was told that such document was only to obtain his ITC, having no intention to waive his entitlement to the amount the Respondent still owed him. In support of his argument, the Claimant submitted a letter dated 7 June 2016, issued by Club H addressed to the player’s agent, according to which it was given the form XXX by LEAGUE K and informed by the latter that it would be used in requesting the Claimant’s ITC. In particular, the director of Club H who issued the letter declared inter alia that “I was told this letter was another one of those letters and it would be used in requesting an ITC for Player A that it needed to be signed in order to get him registered. He trusted in me that the letter was strictly for ITC purposes and signed as I had asked. Not reading or understanding it was a letter for a different subject I then sent it back to (…) the office of League K. I was presented the document unknowing that it was from Club C and gave Player A the instructions that it was for ITC purposes only…”.

28. In its duplica, the Respondent insisted that the parties terminated the contract by mutual consent. The Respondent further detailed that after being contacted by LEAGUE K regarding the ITC of the Claimant on 2 February 2016, the Respondent had asked whether the Claimant would be willing to sign a Mutual Termination Form (XXX), without any intention of misleading the Claimant. According to the Respondent, the terms of the form XXX are clear to anyone, especially to a player represented by an agent. The Respondent stressed that the form XXX is valid and that the Claimant signed a new employment contract with another club and accepted to drop any claims by mutual agreement.

29. In this respect, the Respondent submitted a copy of emails exchanged with LEAGUE K regarding the player’s ITC. In particular, the Respondent presented an email sent by the Respondent to LEAGUE K, dated 2 February 2016, stating that “we have no problem to attach you the TPO declaration, but in Country D the former player have to sign XXX-form (No obligation between former player and Former club). If your side agree, please respond and I will attach the XXX-form as soon as possible”. Moreover, the Respondent submitted an email from the Respondent to the LEAGUE K, dated 7 February 2016, stating that the Football Association of Country D “want to make sure with Agent of Player A about the form of termination (XXX) which has been signed. I still wait for further action.”

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 1 March 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 1 March 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 Claimant and the Respondent signed an employment contract on 9 November 2014, valid from 1 December 2014 until 30 November 2015.

6. The Chamber took note that the Claimant lodged a claim against the Respondent for breach of contract, requesting to be awarded compensation for the alleged breach of contract by the Respondent as well as housing and transport allowances and the reimbursement of a flight ticket. In this regard, the DRC observed that, according to the Claimant, the Respondent terminated the contract without just cause.

7. In continuation, the members of the Chamber took into account that the Respondent, for its part, rejected the Claimant’s argumentation and held that it rightfully terminated the contract in accordance with clause 8.4(i) of the contract. Moreover, the Respondent held that, subsequently, the parties agreed that the contract was terminated by mutual consent by signing the form XXX, by means of which the parties confirmed inter alia that they had no financial claims towards each other.

8. In this context, the members of the DRC acknowledged that the document presented by the Respondent in its defence, the form XXX, was signed by both parties and provides for the termination of the contract by mutual consent of the parties. Said document further establishes that the obligations arising from the employment contract have been fulfilled and that neither the Claimant nor the Respondent has any financial claims towards the other.

9. In this respect, the DRC took into account the Claimant’s argument that upon signature of the form XXX he was unaware that by signing the relevant document he was agreeing to the mutual termination of the contract and waiving his right to claim against the Respondent. In particular, the DRC took note that the Claimant held having signed several documents in order to obtain his ITC, which included the form XXX, which allegedly was the only reason why he signed the relevant form.

10. Subsequently, the Chamber took note that the Respondent deemed that the Claimant was fully aware of the contents of the form XXX. The Respondent further emphasised that the Claimant was also represented by an agent.

11. On account of all the above, the DRC concluded that it has remained undisputed by the parties that, on 3 February 2016, the Claimant and the Respondent signed the form XXX, by means of which the parties agreed that i) the employment contract was terminated by mutual consent, ii) the obligations arising from the employment contract were fulfilled and they had no financial claims towards each other, and iii) they undertook not to lodge any claim against each other.

12. In this context, the members of the DRC took into account the Claimant’s allegation that he was not aware of the legal effects of signing the form XXX and deemed it fit to refer to the DRC’s longstanding jurisprudence, in accordance with which a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility. Notwithstanding the aforesaid, the DRC emphasised that the form XXX was written in English, an official language of Country B as well as that the Claimant was apparently represented by an agent.

13. Consequently, the Chamber concluded that the Claimant’s argumentation in respect of the form XXX could not be upheld.

14. On account of all of the above, in particular, the considerations under points II./11. and II./12. above, the DRC decided to reject the Claimant’s claim.

*****

III. Decision of the Dispute Resolution Chamber

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

*****

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

Chief Legal & Integrity Officer

Encl. CAS directives