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 8 September 2016

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 8 September 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member Leonardo Grosso (Italy), member

Theodore Giannikos (Greece), member

Mohamed Mecherara (Algeria), member

on the matter between the player,

Player A, country B

as Claimant

and the club,

Club C, country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 10 August 2015, the player from country B, Player A (hereinafter: the Claimant), concluded an employment agreement (hereinafter: the contract) with the club from country D, Club C (hereinafter: the Respondent), valid “for two tournaments”, as from the “League 2015” until the “League 2016” championships.

2. According to the contract, the Claimant was entitled, inter alia, to a monthly remuneration in the amount of USD 2,000, payable only until the end of the participation of the Respondent in each championship.

3. According to the information available in the Transfer Matching System (TMS), the 2015-2016 season in country D started on 8 August 2015 and concluded on 18 June 2016.

4. In addition, and according to the contract, the Claimant was entitled to two round trip tickets to country B.

5. Moreover, art. VI of the contract stipulated the following:

“VI) RESCICION ANTICIPADA POR PARTE DEL JUGADOR. En caso de que el jugador rescindiera el Contrato con el Club antes de finalizar el Torneo, el jugador pagar a Club C, una multa de DIEZ MIL 00/100 Dólares de los Estados Unidos de Norte América, si el Club incumpliera el contrato con el jugador Club C pagara la Cantidad de DIEZ MIL 00/100 Dólares de los Estados Unidos de Norte América”

"VI) EARLY TERMINATION BY THE [CLAIMANT]. If the [Claimant] terminates the contract with the [Respondent] before the end of the tournament, the [Claimant] will pay to the [Respondent] a fine in the amount of USD 10,000, if the [Respondent] fails to fulfill the contract with the [Claimant], the [Respondent] will pay the amount of USD 10,000".

6. On 22 February 2016, the Claimant lodged a claim before FIFA against the Respondent for breach of contract without just cause, and requested the payment of the following amounts:

- USD 4,000, corresponding to outstanding salaries for the months of November 2015 and January 2016;

- USD 10,000, corresponding to the compensation established in art. VI of the contract;

- “20% [of] the due amount”, corresponding to “the amounts spent in [the] (…) claim”.

7. In addition, the Claimant requested the imposition of sporting sanctions against the Respondent.

8. In particular, the Claimant explained that, on 29 November 2015, all the players of the Respondent were granted with vacation and that they returned on 18 December 2015. However, the Claimant described that the Respondent failed to send the necessary tickets for him to return.

9. Within this context, the Claimant added that the Respondent failed to pay his salary of November 2015, as well as his salary of January 2016.

10. In this regard, the Claimant stated that he sent an email to the Respondent dated 20 January 2016 but sent on 22 January 2016 in order to request the payment of his salary of November 2015, as well as to obtain his return ticket.

11. Subsequently, the Claimant stated that he sent a default notice on 3 February 2016, by means of which he requested the payment of the outstanding salaries, and that failure to do so within ten days would entitle him to terminate his contract.

12. Finally, the Claimant declared that he sent a termination letter to the Respondent on 15 February 2016.

13. In its reply, the Respondent considered that, according to the contract, it had no obligation to provide the Claimant with his return tickets to country D and that, consequently, by not returning, he abandoned the Respondent.

14. In relation to the outstanding salaries, the Respondent explained that the salary of November 2015 was paid on 16 October 2015 in an anticipated manner, but that the Claimant refused to sign a receipt. In reference to the salary of January 2016, the Respondent considered that the Claimant was not entitled to receive it anymore due to his non-return.

15. In his replica, the Claimant insisted that the Respondent had the obligation to provide him with the return tickets. In support of this argument, the Claimant attached a copy of an alleged exchange of messages on 5 January 2016 between himself and the Respondent’s president, in which the latter apparently requested the Claimant to “wait” because of the difficulties of finding him a return ticket.

16. As final comments, the Respondent confirmed its previous arguments and insisted that the Claimant simply abandoned it. In particular, the Respondent explained that the Claimant was granted with vacation as from 29 November 2015 until 16 December 2015, but that he never returned and only requested the return tickets to country D in January 2016. In this regard, the Respondent argued that the Claimant’s previous club (i.e. Club E, also from country D) already bought a round trip for the Claimant and that it was “unaware of the status of [said] air tickets”.

17. Moreover, the Respondent explained that even though it deemed that the Claimant was responsible for the early termination of the contract, it refused to claim any compensation from him in order to allow him to pursue his career.

18. In addition, the Respondent requested the Claimant to reimburse the “translation costs” (from English to Spanish) of the claim.

19. Finally, the Claimant informed FIFA that, on 2 March 2016, he concluded a new employment contract with the club from country B, Club F, which was terminated by mutual agreement on 7 March 2016. Subsequently, the Claimant informed FIFA that, on 29 March 2016 he concluded an employment contract with the club from country B, Club G, valid as from the date of signature until 27 June 2016, for a monthly salary in the amount of 900, equivalent to approx. USD 243.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 22 February 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 2015 edition 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 from country B and a club from country D.

3. The competence of the Chamber having been established, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 (editions 2015 and 2016), and considering that the present matter was submitted to FIFA on 22 February 2016, the 2015 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered for the assessment of the matter at hand.

5. In this respect, the Chamber acknowledged that, on 10 August 2015 the parties to the dispute had signed an employment contract valid “for two tournaments”, as from the “League 2015” until the “League 2016” championships.

6. In view of the above, the members of the Chamber deemed of utmost importance to recall the following sequence of events, which remained undisputed by the parties. In particular, the Chamber observed that, according to the Claimant, on 29 November 2015, he was granted with vacation together with other players of the Respondent and that said players returned to country D on 18 December 2015.

7. Moreover, the DRC took note that, according to the Claimant, the Respondent failed to send him the necessary tickets in order to allow his return to country D. In addition, the members of the Chamber noted that only on 22 January 2016 he contacted the Respondent in order to obtain said tickets (cf. point I. 10 above).

8. The members of the Chamber then observed that, as acknowledged by the parties, on 15 February 2016, the Claimant terminated the contract on the basis that the Respondent is to be held liable for breach of contract for having failed to remit his remuneration of November 2015 and January 2016, as well as for failing to fulfil its obligations in relation to the flight tickets that he was entitled to receive from the Respondent (cf. points I.4 and I.8 above).

9. Consequently, the Chamber understood that, in order to determine if the Claimant had just cause to terminate the contract, it had to assess the main arguments brought up by the Claimant which consist in the existence of outstanding salaries as well as in the Respondent’s alleged failure to fulfil its obligations in relation to the flight tickets that he would have been entitled to receive from the Respondent (cf. points I.4 and I.8 above).

10. Firstly, and in reference to the claimed outstanding salaries, the Chamber took note of the Claimant’s argument, according to which the remuneration of two months, i.e. November 2015 and January 2016, would have been outstanding at the date of the termination of the contract.

11. In reference to the salary of November 2015, the members of the Chamber noted that, according to the Respondent, the Claimant’s salary for said month was paid on 16 October 2015 in an anticipated manner, but that the latter refused to sign a receipt.

12. Within this context, the DRC recalled the basic principle of burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

13. In relation to said principle, the members of the DRC noted that the Respondent’s argument regarding the payment of the Claimant’s salary of November 2015 was not supported with sufficient and conclusive evidence. Therefore, the members of the DRC unanimously agreed to reject the Respondent’s allegation regarding this issue, and established that the Claimant is entitled to receive the amount of USD 2,000 from the Respondent, corresponding to the salary of November 2015.

14. Additionally, and in reference to the salary of January 2016, the members of the Chamber underlined that, according to the Respondent (cf. point I.16 above), the Claimant ceased to render his services for the Respondent as from 29 November 2015, and that said fact remained uncontroverted between the parties. Consequently, the DRC unanimously established that no salary is due to the Claimant for said period of time.

15. Therefore, and since only the salary of November 2015 was outstanding, the Chamber deemed it fit to point out that, in general, that is, regardless of specific circumstances surrounding a matter, solely the non-payment of one month of salary cannot be considered a just cause for a player to cease rendering his services to a club.

16. Secondly, the members of the Chamber reverted to the Claimant’s argument, according to which the Respondent also failed to fulfil its obligations in relation to the flight tickets that he was entitled to receive from the Respondent. In this regard, the members of the Chamber understood that this argument was also brought forward by the Claimant in order to justify the early termination of the contract.

17. In this respect, and after a careful examination of the documentation on file, the Chamber pointed out that no contractual provision obliged the Respondent to provide the Claimant with flight tickets in order for the latter to return from his vacation in December 2015.

18. In addition, the Chamber noted the considerable amount of time elapsed between the moment when the Claimant should have joined the Respondent (i.e. 18 December 2015) and the moment when it can be established that he made the first efforts to join the latter (i.e. 22 January 2016), the members of the Chamber unanimously understood that the Claimant failed to fulfill his contractual obligations, since it took him more than one month to initiate the necessary procedures that would allow him to continue rendering his services for the Respondent.

19. In view of the arguments brought up by the Claimant, the DRC wished to emphasize that, according to the principle of contractual stability, the unilateral termination of a contract must be considered as an absolute last resort, where, given the particularities of the situation at stake, it could not be expected that one of the parties could reasonably continue to be bound by the contractual relationship. In what concerns financial obligations, one of the consequences of the aforementioned principle is that only a persistent and substantial non-compliance of these obligations could justify the unilateral termination of a contract.

20. On account of the above considerations, the members of the Chamber established that the Respondent was absent from the Respondent as from 29 November 2015 and that he failed to undertake all necessary steps to resume his duties thereafter in a timely and diligent manner. Thus, the members of the Chamber understood that said behavior revealed a lack of will from the Claimant to continue his contractual relationship with the Respondent and that, consequently, he terminated the contract on 15 February 2016 without just cause.

21. In sum, and as stated above, the DRC understood that the Respondent shall be only liable for the payment of the outstanding amount of USD 2,000, corresponding to the Claimant’s salary of November 2015.

22. Finally, as regards the claimed legal expenses by the Claimant, 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 request relating to legal expenses.

23. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are 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 USD 2,000.

3. In the event that said sum is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and 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 under point 2. is to be made and to notify the Dispute Resolution Chamber of every payment received.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under point 3. 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 (CAS)

Avenue de Beaumont 2

CH-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

Enclosed: CAS directives