F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 19 April 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 19 April 2018,

in the following composition:

Geoff Thompson (England), Chairman

Takuya Yamazaki (Japan), member

Tomislav Kasalo (Croatia), member

Daan de Jong (The Netherlands), member

Abu Nayeem Shohag (Bangladesh), member

on the matter between the club,

Club A, Country B

as Claimant / Counter-Respondent

and the player,

Player C, Country D

as Respondent / Counter-Claimant

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 24 January 2017, the player of Country D, Player C (hereinafter: Respondent / Counter-Claimant or the player) and the club of Country B, Club A (hereinafter: the Claimant / Counter-Respondent or the club) concluded an employment contract (hereinafter: the contract) valid as from the month of January 2017 until the end of season 2019/2020, i.e. for “three seasons and a half season”.

2. According to the second clause of the contract, the player was entitled to a total salary of USD 1,700,000, payable according to the following schedule:

a) USD 220,000 for season 2016/2017, broken-down as follows:

- USD 55,000 on 30 January 2017;

- USD 33,000 on 28 February 2017;

- USD 33,000 on 30 March 2017;

- USD 33,000 on 30 April 2017;

- USD 33,000 on 30 May 2017;

- USD 33,000 on 30 June 2017.

b) USD 466,000 for season 2017/2018;

c) USD 493,000 for season 2018/2019;

d) USD 521,000 for season 2019/2020.

3. Clause sixth of the contract stipulates that “the Club has the right to terminate this Contract with the Player at the end of season 2017/2018, or any following seasons so that the Player will be notified not later than 15 days after the end of the last season official match, and the Player has no right to object and claim any financial dues for the contract remaining seasons, (this conditions may not be changed or amended)”.

4. On 25 May 2017, the club sent a letter to the player, contesting his unjustified absence from the team’s trainings on that day and requesting him to immediately report to the club.

5. On 26, 27, and 28 May 2017, the club sent the same letter to the player with reference to the club’s trainings on the same dates.

6. On 5 June 2017, the Claimant / Counter-Respondent lodged a claim in front of FIFA against the Respondent / Counter-Claimant for breach of contract, requesting the following:

a) USD 1,224,000 as reimbursement of the costs the club had allegedly incurred in order to transfer the player;

b) USD 3,400,000 as compensation for the breach of contract, corresponding to the damages allegedly suffered by the club due to the player’s absence.

7. In its claim, the Claimant / Counter-Respondent alleged that the player left the club on 25 May 2017 without justification and failed to reply to the club’s communications. In particular, the club maintained that the player not only did not take part in the club’s trainings since that date, but he even left the country without the club’s permission.

8. As to the costs allegedly incurred to transfer the player, the Claimant / Counter-Respondent stated that it paid the following amounts:

a) USD 800,000 as transfer fee paid to the player’s former club, Club E. In this context, the Claimant / Counter-Respondent submitted copy of the transfer agreement between the club and Club E, indicating the aforementioned transfer fee, and the relevant bank receipt;

b) USD 154,000 as the player’s salary for the period between 24 January 2017 and 30 April 2017;

c) USD 264,000 paid to the club’s intermediary for the transfer of the player to the club. The Claimant / Counter-Respondent submitted copy of the relevant “representation contract between intermediary and club” and the relevant bank receipt, indicating a commission paid to the intermediary amounting to USD 251,000;

d) USD 6,000 for “the equivalent of sanctioning the player agreement by the Football Association of Country B”. In particular, on 1 June 2016, the club sent a letter to the “Football Association of Country B”, informing it of the alleged player’s absence since 25 May 2017 and requesting it to “take the necessary legal action against the player”. Moreover, according to the bank receipt on file, the club paid USD 6,600 for “Registration fees in Football Association of Country B (3% of annual amount)”.

9. In his reply to the claim, the Respondent / Counter-Claimant contested the club’s arguments and lodged a counterclaim against the Claimant / Counter-Respondent, requesting compensation for breach of contract in the amount of USD 1,572,400, plus 5% interest as of 24 May 2017, broken-down as follows:

a) USD 26,400 as outstanding remuneration for the period between 1 and 24 May 2017;

b) USD 1,546,000 as compensation for breach of contract, corresponding to the remaining value of the contract.

Furthermore, the player requested sporting sanctions to be imposed on the club.

10. In his counterclaim, the Respondent / Counter-Claimant argued that he terminated the contract with just cause by leaving Country B on 25 May 2017, as the following circumstances allegedly rendered the continuation of the employment relationship “in good faith unconscionable for him”:

i) the confiscation of his passport by the club upon his arrival to Country B and the consequent club’s refusal to return it to him until 24 May 2017. The player stated that, as a consequence thereof, during said period he was prevented from travelling freely and accessing banking facilities in Country B. Moreover, the player emphasised that he left the country with his family on 25 May 2017, i.e. immediately after his passport was returned, and alleged that he informed the club about the termination of the contract;

ii) the “club’s instruction to pray upon scoring a goal”. In this regard, the player affirmed that he informed the club about his intention not to comply with the aforementioned instruction and alleged that, because of his refusal, he was treated in a degrading and humiliating way by the club;

iii) the club’s instruction not to give interviews to the press.

In this context, the player only submitted witness statements released by himself and his wife in order to corroborate his argumentation.

Moreover, the player submitted alleged death threats and racist insults which he reportedly received via internet, after he left the club and maintained that such circumstance made the continuation of the employment relationship impossible.

11. In its reply, the Claimant / Counter-Respondent insisted with its previous arguments and rejected the player’s counterclaim. In particular, the club denied that the player received any kind of oppression based on his religious beliefs and affirmed that he was treated “as a grand star”, as allegedly confirmed by the player himself on the club’s website. In particular, the club highlighted that, according to news published on the club’s official website on 11 May 2017, the player expressed “happiness with the confidence given to him by the fans” after winning the “player’s of the month award”.

12. Moreover, the club emphasised that, according to its internal regulations, the player was not instructed not to release interviews, but rather to obtain the club’s permission before contacting the media.

13. Furthermore, as to the threats allegedly received by the player via internet, the club maintained that such threats were created by the player himself with the aim of finding a cause which could prevent him from returning to Country B.

14. In his final comments, the Respondent / Counter-Claimant reiterated his initial requests and emphasised that the club did not expressly deny that it confiscated his passport until 24 May 2017 or that it instructed him to pray upon scoring goals.

15. Furthermore, the player argued that the statements released by himself on the club’s official website proved that the club did not allow him to contact media not controlled by the club itself.

16. Upon request of the FIFA Administration, the player informed that it did not conclude any employment contract with other club after the termination of the contract, situation which remains at the moment of the present decision.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the 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 June 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; 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 2018), 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 club of Country B and a player of Country D.

3. In continuation, 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 2018), and considering that the present claim was lodged on 5 June 2017, the 2016 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 player and the club signed an employment contract, valid as from the month of January 2017 until the end of season 2019/2020. Furthermore, the Chamber also took note that it is uncontested by the parties that, on 25 May 2017, the player definitively left the club, thereby terminating the contract.

6. In continuation, the DRC noted that the player argued that he had just cause to terminate the contract. In particular, he maintained that the alleged following circumstances made it impossible for him to continue with the employment relationship with the club: i) the confiscation of his passport by the club until 24 May 2017; ii) the club’s instruction to pray upon scoring a goal; iii) the club’s instruction to not give interviews; iv) the death threats and insults he received on internet after he left the club.

7. The Chamber further took note that, conversely, the club argued that the player did not have just cause to terminate the contract. Particularly, the club referred to the player’s alleged unjustified absences from the team’s trainings between 25 and 28 May 2017 and to his departure without justified reason. As a consequence thereof, the club requested compensation for the alleged breach of the contract by the player.

8. In view of the aforementioned considerations, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine whether, on 25 May 2017, the contract had been terminated by the player with or without just cause and which party was responsible for the early termination of the contractual relationship in question.

9. In this context, the Chamber was eager to emphasise first that according to its well established jurisprudence only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, a contract may be terminated prematurely only when there are objective criteria which do not reasonably permit one to expect the continuation of the employment relationship. Hence, if there are more lenient measures which can be taken in order for an employee to ensure the employer’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 be an ultima ratio.

10. Moreover, the Chamber referred to art. 12 par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. Thus, it is up to the Respondent / Counter-Claimant to substantiate and provide documentary evidence with regard to the alleged circumstances which, according to the player, made impossible the continuation of the employment relationship with the club.

11. On account of the aforementioned considerations, the member of the Chamber went to analyse the arguments brought by the Respondent / Counter-Claimant in support of his decision to terminate the contract.

12. First the Chamber noted that, according to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent allegedly confiscated his passport upon his arrival in Country B and only returned it on 24 May 2017.

13. What is more, the DRC also noted that the Respondent / Counter-Claimant maintained that the alleged confiscation of the passport prevented him from travelling freely and access to bank facilities in Country B. In this regard, and again referring to the burden of proof as explained above, the members of the DRC deemed essential to emphasise that the Respondent / Counter-Claimant neither provided any tangible evidence which could prove that, during his stay in Country B, he indeed requested the club to return him his passport, nor that the lack of such document prevented him from accessing bank facilities. In any case, the DRC pointed out that it has remained undisputed that the club always complied with its financial obligations towards the player.

14. In continuation, as to the Respondent / Counter-Claimant’s allegation that he was treated in a degrading and humiliating way by the club due, in particular, to his religious beliefs, the members of the Chamber noted that the statements of the player are contested by the club. In particular, the DRC noted that, according to news published on the official website of the club, which were submitted by the Claimant / Counter-Respondent, the player was expressing “happiness” about his condition at the club.

15. In this context, the Chamber deemed necessary to highlight that the Respondent / Counter-Claimant, as evidence of the circumstances allegedly occurred until he terminated the contract, only submitted witness statements released by himself and his wife. In this regard, the DRC concluded that such witness statements, in and of themselves, are insufficient to demonstrate to the Chamber’s satisfaction that the aforementioned circumstances actually took place.

16. Furthermore, as to the threats and insults allegedly received by the Respondent / Counter-Claimant on internet, the members of the Chamber went to analyse the messages submitted by the player in support to his argumentation. In this context, the DRC noted that, from the content of the aforementioned messages, it is not possible to establish the identity of neither the sender nor the recipient of each message. What is more, said messages date back to the month of June 2017, thus after the Respondent / Counter-Claimant had already terminated the contract.

17. On account of the aforementioned considerations, the Chamber decided that there was no other option but to dismiss the argumentations of the Respondent / Counter-Claimant since it had not been proven that the circumstances alleged by the player occurred, nor had it been demonstrated that said circumstances were as severe as to justify a premature termination of the employment contract by the Respondent / Counter-Claimant. Finally, the DRC emphasised once again that the player never put the club in default of its contractual obligations in order to provide the latter a possibility to remedy the default. Consequently, the Chamber deemed that player had no just cause to unilaterally terminate the employment relationship and therefore concluded that the Respondent / Counter-Claimant had terminated the employment contract without just cause on 25 May 2017 and is to be held liable for such contractual termination.

18. In light of the foregoing, the DRC established that, in accordance with art. 17 par. 1 of the Regulations, the Respondent / Counter-Claimant is liable to pay compensation to the Claimant.

19. Having stated the above, 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 reiterated 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 player under the existing contract and/or the new contract(s), the time remaining on the existing contract up to a maximum of five years as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party.

20. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the relevant employment contract between the player and the club contains a provision by means of which the parties had beforehand agreed upon an amount of compensation for breach of contract. In this regard, the Chamber established that no such compensation clause was included in the said employment contract at the basis of the matter at stake.

21. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter, as well as the Chamber’s specific knowledge of the world of football and its experience gained throughout the years.

22. Consequently, in order to estimate the amount of compensation due to the Claimant / Counter-Respondent in the present case, the Chamber firstly turned its attention to the to the essential criterion relating to the fees and expenses paid by the club for the acquisition of the player’s services insofar as these have not been amortised over the term of the relevant contract. The Chamber recalled that a transfer compensation of USD 800,000 had been paid by the Claimant / Counter-Respondent to the Club E for the player‘s transfer in January 2017, documentation of which has been presented by the Claimant / Counter-Respondent. According to article 17 par. 1 of the Regulations, this amount shall be amortised over the term of the relevant employment contract. As stated above, the player was still bound to the club for further three years when he terminated the relevant employment contract. As a result of the player’s breach of contract on 25 May 2017, the club has thus been prevented from amortising the amount of USD 704,760, relating to the transfer compensation that it paid in order to acquire the player’s services.

23. The Chamber then focused on the intermediary’s fee of USD 251,000 that the club alleged having incurred in connection with the signing of the player. In this regard, the members of the Chamber pointed out that, according to article 17 par. 1 of the Regulations, intermediary fees may be included as one of the criteria to be taken into account in the calculation of compensation. In this respect, the members of the Chamber referred to the bank statement submitted by the Claimant in relation to the payment of the amount of USD 251,000 as intermediary fee and concluded that the unamortised part of such fee was to be calculated considering the remaining period provided in the employment contract. Consequently, the members of the Chamber concluded that the amount of USD 221,100 shall be taken into account as unamortised intermediary fee for the remaining period of three years.

24. In continuation, the members of the Chamber turned their attention to the remuneration and other benefits due to the player under the existing contract and the new contract(s), which criterion was considered by the Chamber to be essential. In this context, the members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into consideration both the existing contract and the new contract(s) in the calculation of the amount of compensation, thus enabling the Chamber to gather indications as to the economic value attributed to a player by both his former and his new club(s).

25. In this regard, the DRC established, on the one hand, that the employment contract between the player and the club, signed on 24 January 2017, had been set to expire at the end of season 2019/2020. Moreover, the DRC took note that, at the moment of the present decision, the player did not sign any new employment contract after the termination of the contract and that he is currently still unemployed. In view of the foregoing, and also considering the young age of the player (currently 23 years old) as well as the specific circumstances surrounding the present case, the members of the Chamber deemed fair and reasonable to consider only the last two seasons of the remaining contractual period, in the amount of USD 1,014,000.

26. On the other hand the Chamber recalled that the player is still unemployed. An inevitable consequence of such fact is that the value of “the player’s new contract” should be set to 0. Consequently, the Chamber concluded that the average of remuneration between the relevant part of the terminated contract and of the “new contract” amounts to USD 507,000.

27. Consequently, on account of the above-mentioned considerations, the Chamber decided that the Respondent / Counter-Claimant must pay the amount of USD 1,432,860 to the Claimant / Counter-Respondent which, is to be considered a reasonable and justified amount of compensation for breach of contract in the matter at hand.

28. Furthermore, as to the counterclaim lodged by the player against the club for outstanding remuneration, the DRC took note that the player’s remuneration for the month of May 2017 corresponds to USD 33,000 payable on 30 May 2017, and that the Respondent / Counter-Claimant requested outstanding remuneration in the amount of USD 26,400 for the period between 1 and 24 May 2017.

29. In continuation, the members of the Chamber considered that it remained uncontested by the Claimant / Counter-Respondent that the Respondent / Counter-Claimant did not receive the remuneration for the month of May 2017.

30. Consequently, on account of the aforementioned considerations, the DRC concluded that the Respondent / Counter-Claimant is entitled to outstanding remuneration in the amount of USD 24,600.

31. In addition, with regard to the player’s request for interest and as per the well-established jurisprudence of the DRC, the Chamber decided that the Claimant is entitled to 5% interest p.a. on said amount as of 31 May 2017 until the date of effective payment.

32. Finally, the DRC also rejected the counterclaim lodged by the player for breach of contract, as it has been established that the player terminated the contract without just cause.

33. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant / Counter-Respondent and the Respondent / Counter -Claimant are rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Club A, is partially accepted.

2. The Respondent / Counter-Claimant, Player C, has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 1,432,860.

3. In the event that the aforementioned amount is not paid by the Respondent / Counter-Claimant 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. The counterclaim of the Respondent / Counter-Claimant is partially accepted.

5. The Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 26,400, plus 5% interest p.a. as of 31 May 2017.

6. In the event that the aforementioned amount plus interest is not paid by the Claimant / Counter-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.

7. Any further claim lodged by the Claimant / Counter-Respondent and by the Respondent / Counter-Claimant is rejected.

8. The Claimant / Counter-Respondent and the Respondent / Counter-Claimant are directed to inform each other, immediately and directly, of the account number to which the relevant 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 / www.tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Integrity Officer

Encl.: CAS directives