DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 25 gennaio 2018 • Stagione sportiva: 2017/2018

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 25 January 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 January 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Tomislav Kasalo (Croatia), member

Pavel Pivovarov (Russia), member

Daan de Jong (The Netherlands), 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 15 July 2015, the player of Country B, Player A (hereinafter: the Claimant) signed a “Professional Football Player Transfer Contract” (hereinafter: the contract) with the club of Country D, Club C (hereinafter: the Respondent) valid from 15 July 2015 until 31 May 2018.

2. Under the terms of article 3 of the contract, the Claimant was to receive, inter alia, the following amounts:

a. For the 2015/2016 sporting season:

i. EUR 50,000 payable in 10 monthly instalments of EUR 5,000 each, as from 30 August 2015 until 30 May 2016, always at the end of the month;

ii. “The player has a total per match bonus of EUR 80,000 (40 League and Cup matches x EUR 2,000)”;

b. For the 2016/2017 sporting season:

i. EUR 55,000 payable in 10 monthly instalments of EUR 5,500 each, as from 30 August 2016 until 30 May 2017, always at the end of the month;

ii. “The player has a total per match bonus of EUR 88,000 (40 League and Cup matches x EUR 2,200)”;

c. For the 2017/2018 sporting season:

i. EUR 60,000 payable in 10 monthly instalments of EUR 6,000 each, as from 30 August 2017 until 30 May 2018, always at the end of the month;

ii. “The player has a total per match bonus of EUR 96,000 (40 League and Cup matches x EUR 2,400)”;

d. “For every 10 league games the player plays in the first 11, he is entitled to EUR 10,000 in addition to his contract”.

3. According to art. 3 of the contract, per match payments are paid at a rate of 100% if the player is in the starting eleven, 75% if he enters the field during the match and 50% if he is on the bench but does not enter. These are paid only for official games (i.e. not for friendly matches) and will be paid after every six games within thirty days.

4. The contract further provides that “if both parties agree in written form to extend the contract of the player until 31 May 2017, the contract is going to be extended for one more year with the conditions written below. Otherwise, if the parties do not extend the contract, this contract in hand is going to end without any further notification on 31.05.2017.”

5. Art. 3 of the contract further stipulates that “if the club fails to pay [any] of the amounts referred in this employment contract for more than 30 days (i.e. salaries, benefits, bonuses and any other monetary obligations), this contract may be terminated by the player for just cause. In order to exercise the option, the player shall make a written official notification to the club and if the club does not pay the due amount within 30 days after receiving this legal notification, the player will be free to sign contracts with any other clubs”.

6. On 30 July 2016, the Respondent notified the Claimant that the contract was unilaterally terminated since the Claimant allegedly did not fulfil his obligations as per the contract. In particular, the Respondent states that “the professional football player shall be obliged to attend and participate in all domestic and international competitions and training programs of the club” and asserts that the Claimant did not participate in training on 15 July 2016 between 18.30 and 19.00 as well as on 28 July 2016 between 10.00 and 11.00 and 18.00 and 19.00 as was stated in the “official determination reports” issued on the relevant days.

7. On 21 April 2017, the Claimant lodged a claim against the Respondent before FIFA requesting to be paid a total of EUR 130,000 plus 5% interest p.a. from the relevant due dates as follows:

a. Outstanding remuneration:

i. EUR 45,000 as “9 unpaid salaries until the date of termination of the contract” (i.e. for September 2015 to May 2016);

ii. EUR 20,000 as “game bonuses” (cf. point I.10 below);

iii. EUR 10,000 as “special bonus” (cf. point I.10 below);

b. Compensation:

i. EUR 55,000 for “the damages because of the termination of the contract without just cause”.

8. The Claimant further requested sporting sanctions and all the legal expenses to be imposed on the Respondent.

9. The Claimant claims that the Respondent unilaterally terminated the contract without just cause on the basis of an alleged absence. The Claimant claims that in spite of the clear bad faith of the club, since the player was in training on 15 July 2016, “missing only three trainings” does not constitute a just cause for the Respondent to unilaterally terminate an employment contract.

10. Furthermore, the Claimant asserts that the Respondent had only paid EUR 5,000 to the Claimant on 12 November 2015, and has nine monthly salaries due as outstanding remuneration. In addition, the Claimant claims to have played in 10 official games and is consequently owed EUR 20,000 as per match payments in addition to EUR 10,000 as special bonus (cf. point 2.a and 2.d above).

11. In spite of having been invited to do so, the Respondent did not reply to the claim of the Claimant.

12. The Claimant informed FIFA that he had not signed any employment contract with another club since 30 July 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 21 April 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 (editions 2016 and 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 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 (editions 2016 and 2018), and considering that the present claim was lodged on 21 April 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. The Chamber, first and foremost, acknowledged that the parties were contractually bound by a “Professional Football Player Transfer Contract” valid as from 15 July 2015 until 31 May 2018. However, in the absence of any evidence provided by the Claimant, the Chamber understands that the contract was not renewed in accordance with art. 3 of the contract (cf. point I.4 above) and is therefore valid until 31 May 2017.

6. The members of the Chamber then reviewed the claim of the Claimant, who maintains that the Respondent unilaterally terminated the contract on 30 July 2016 without just cause, based on his alleged absence at training on 15 July 2016 – which he denies – and on 28 July 2016. Consequently, the Claimant asks to be awarded, inter alia, payment of his outstanding remuneration as well as compensation for breach of contract.

7. Subsequently, the DRC noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the DRC concurred that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the members of the DRC concurred that in accordance with art. 9 par. 3 of the Procedural Rules, the Chamber shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

9. On account of the above, the Chamber highlighted that the underlying issue in this dispute was to determine as to whether the contract had been unilaterally terminated with or without just cause by the Respondent on 30 July 2016. The Chamber also underlined that, subsequently, if it were found that the contract was terminated without just cause, it would be necessary to determine the consequences thereof.

10. Having said that, the Chamber turned its attention to the documentation presented by the Claimant, in particular, the termination letter dated 30 July 2016.

11. According to said letter, the Claimant was deemed to have been absent from training sessions on 15 and 28 July 2016 without justification or the club’s authorisation. Therefore, on 30 July 2016, the Respondent decided to terminate the contracts allegedly at the player’s fault.

12. In addition, the members of the Chamber noted that the Claimant, for his part, maintains that he did participate in the training session on 15 July 2016.

13. At this point, the Chamber highlighted that there was no documentation on file corroborating the alleged conduct of the Claimant as described in the termination letter dated 30 July 2016.

14. However, even if such alleged behaviour would have been duly corroborated with documentary evidence, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect the 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 assure 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 always only be an ultima ratio.

15. In view of the above, the Chamber was of the opinion that the Respondent did not have just cause to prematurely terminate the contracts with the Claimant on 30 July 2016, since there would have been more lenient measures to be taken (e.g., among others, a suspension or a fine), in order to sanction the alleged misconduct, which is at the basis of the termination of the contracts by the Respondent, which is not even proved.

16. Overall, on the basis of the documentation on file, the Chamber decided that the Respondent had terminated the contract without just cause on 30 July 2016.

17. In continuation, prior to establishing the consequences of the breach of contract without just cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment the contracts were terminated by the Respondent.

18. In this regard, the members of the Chamber recalled that the Claimant’s claim related to outstanding remuneration, as well as compensation for breach of contract, is based on the contract.

19. Having said that, taking into consideration a) the Claimant’s financial claim based on the contract, b) the fact that such claim has remained uncontested by the Respondent, and c) that the contract was terminated by the Respondent on 30 July 2016, the Chamber decided that, in virtue of the principle pacta sunt servanda the Respondent is liable to pay to the Claimant the amount of EUR 75,000 in accordance with the contract, corresponding to EUR 45,000 as nine monthly salaries of EUR 5,000 each, from September 2015 until May 2016, as well as EUR 20,000 as per match bonuses for season 2015/2016 for 10 matches played à EUR 2,000 each (cf. point I.2.a.ii above) and EUR 10,000 corresponding to the bonus due for every 10 league games played in the starting 11 (cf. point I.2.d above). In this respect, the DRC referred to the content of art. 12 par. 3 of the Procedural Rules and pointed out that the Claimant provided match lists extracted from the website of the Football Federation of Country D, proving his entitlement to the match bonuses and to the league bonuses.

20. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the aforementioned amounts as from the due dates as follows:

a. 5% p.a. over the amount of EUR 5,000 as from 1 October 2015 until the date of effective payment;

b. 5% p.a. over the amount of EUR 5,000 as from 31 October 2015 until the date of effective payment;

c. 5% p.a. over the amount of EUR 5,000 as from 1 December 2015 until the date of effective payment;

d. 5% p.a. over the amount of EUR 5,000 as from 31 December 2015 until the date of effective payment;

e. 5% p.a. over the amount of EUR 5,000 as from 31 January 2016 until the date of effective payment;

f. 5% p.a. over the amount of EUR 5,000 as from 1 March 2016 until the date of effective payment;

g. 5% p.a. over the amount of EUR 5,000 as from 31 March 2016 until the date of effective payment;

h. 5% p.a. over the amount of EUR 5,000 as from 1 May 2016 until the date of effective payment;

i. 5% p.a. over the amount of EUR 5,000 as from 31 May 2016 until the date of effective payment;

j. 5% p.a. over the amount of EUR 20,000 as from 1 June 2016 until the date of effective payment;

k. 5% p.a. over the amount of EUR 10,000 as from 1 June 2016 until the date of effective payment;

21. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the contract by the Respondent without just cause on 30 July 2016.

22. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation from the Respondent for the termination of the contract without just cause in addition to the aforementioned outstanding remuneration on the basis of the contract.

23. 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 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.

24. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent contract contain 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.

25. 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. In this regard, the Dispute Resolution Chamber emphasized 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.

26. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

27. On the basis of the contract signed by the Claimant and the Respondent, which was to run until 31 December 2017, after the breach of contract occurred, the Chamber concluded that the amount of EUR 55,000 (10 monthly instalments of EUR 5,500 in accordance to art. 3 of the contract, corresponding to the entire remuneration due for season 2016/2017) serves as the basis for the final determination of the amount of compensation for breach of contract.

28. 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 enabled 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.

29. The Chamber noted that the Claimant had been unemployed until 31 May 2017 and therefore no further deductions should be made to the amount of EUR 55,000.

30. In addition, taking into account the Claimant’s request and the DRC’s well-established jurisprudence, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 55,000 as compensation as of the date on which the claim was lodged, i.e. 21 April 2017, until the date of effective payment.

31. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

32. Finally, 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 EUR 75,000 plus 5% interest p.a. as follows: