F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision15 February 2018

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 February 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Stéphan Burchkalter (France), member

Philippe Diallo (France), member

Joseph Bell (Cameroon), 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 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 29 June 2011 until 31 May 2016.

2. The contract does not contain a clause relating to compensation for breach of contract.

3. Following the conclusion of a first “protocol” to the contract on 21 June 2011, the parties concluded, on 1 August 2012, a second “protocol” to the contract (hereinafter: the protocol), valid as from the date of signature until and including the season 2016/2017. According to article 2 of the protocol “the subject of this contract is the improvement of the existing contract between the [Claimant] and the [Respondent] during the seasons 2012/2013, 2013/2014, 2014/2015, 2015/2016, 2016/2017”.

4. According to article 4 of the protocol, the Claimant was entitled, inter alia, to the following remuneration:

 For the 2012/2013 football season:

EUR 300,000 to be paid in ten instalments of EUR 30,000, from 20 August 2012 until 20 May 2013.

 For the 2013/2014 football season:

EUR 325,000 to be paid in ten instalments of EUR 32,500, from 20 August 2013 until 20 May 2014.

 For the 2014/2015 football season:

EUR 350,000 to be paid in ten instalments of EUR 35,000, from 20 August 2014 until 20 May 2015.

 For the 2015/2016 football season:

EUR 375,000 to be paid in ten instalments of EUR 37,500, from 20 August 2015 until 20 May 2016.

 For the 2016/2017 football season:

EUR 400,000 to be paid in ten instalments of EUR 40,000, from 20 August 2016 until 20 May 2017.

5. In addition, according to article 5 of the protocol the Claimant was entitled to “2 times return tickets for the [Claimant] and family members Country D/Country B/Country D”, as well as to a “fully furnished luxury house and car”.

6. On 29 August 2012, the Claimant and the Respondent concluded a “mutual termination and release agreement” (hereinafter: the termination agreement), by means of which “the Parties wish to terminate their Employment Agreements dated 21 June 2011 and 29 June 2011 its entirety (and all charged protocols)” and “…fully, irrevocably and unconditionally release and forever discharge each other of and from any claims, liabilities, demands and obligations whether arising by statute or otherwise”.

7. On 18 May 2015, the Claimant lodged a claim before FIFA, and requested the payment of a total amount of EUR 1,671,904, plus “legal interest” detailed as follows:

 EUR 210,000, corresponding to seven outstanding instalments for the period comprised between 20 October 2012 until 20 May 2013 (i.e. EUR 30,000 per month).

 EUR 1,460,137, as compensation for breach of contract, corresponding to the “anticipated earnings available to the [Claimant] for the period that the employment contract still has to run” , broken down as follows:

- EUR 325,000, for the period comprised between 20 August 2013 until 20 May 2014;

- EUR 350,000, for the period comprised between 20 August 2014 until 20 May 2015;

- EUR 375,000, for the period comprised between 20 August 2015 until 20 May 2016;

- EUR 400,000, for the period comprised between 20 August 2016 until 20 May 2017.

- EUR 10,137, that according to the Claimant corresponds to the whole value of a first contract signed between him and the club of Country E, Club F (cf. point 37 below).

 EUR 1,767, for costs, estimated as follows:

- 350, estimated by the Claimant to be equivalent to EUR 46, for the costs related to a medical examination held on 26 April 2013;

- 6,800, estimated by the Claimant to be equivalent to EUR 901, for an operation related to the aforementioned examination, performed on 8 May 2013;

- EUR 820, corresponding to a return airplane ticket for the route Country D-Country B-Country D.

8. In support of his claim, the Claimant held that the Respondent had failed to pay any salary since October 2012.

9. In view of the above, the Claimant explained that, on 11 February 2013, his agent sent an email to the Respondent, by means of which he requested the payment of outstanding salaries since October 2012 for a total amount of EUR 90,000.

10. Subsequently, the Claimant explained that on 19 February 2013 he sent a second email to the Respondent, in which he insisted on his request for the payment of outstanding salaries.

11. Thereafter, the Claimant explained that, on 18 March 2013, he met with the Respondent’s president, who allegedly offered him to become a free agent on the condition that all outstanding amounts shall be deemed as void.

12. Within this context, the Claimant explained that the Respondent isolated him from the first team and ordered him to train alone until 27 March 2013.

13. In this regard, the Claimant stated that in a meeting with the Respondent’s vice president on 27 March 2013, the Respondent offered him to return to the first team, on the condition that the protocol would be cancelled, which was declined by the Claimant.

14. In continuation, the Claimant stated that following the meeting of 27 March 2013, he was instructed to return to the first team because the new coach deemed so.

15. Later, the Claimant explained that, on 6 April 2013, he suffered an injury to his knee during a training session. In view of this, the Respondent agreed to him travelling to Country G to undergo a medical examination, which led to an operation, apparently undertaken on 8 May 2013. In this regard, the Claimant explained that the Respondent refused to pay for his treatment and the travel costs related to his injury.

16. Furthermore, the Claimant stated that following the operation, he “returned to Country D where he undertook treatments and stayed until the end of the season”.

17. In this context, the Claimant argued that on 1 July 2013 he received an SMS message from the Respondent. According to the Claimant, he was informed that he would not be part of the preparatory season as he was not part of the first team. Moreover, the Claimant explained that on 7 July 2013 he was refused the entry to his apartment and his car was taken away. According to the Claimant, on 10 July 2013 he attended a meeting with the Respondent’s vice president who allegedly offered to agree on the termination of the contract without any payment or compensation whatsoever.

18. In continuation, the Claimant stated that, on 12 July 2013, he sent a letter to the Respondent, in which he granted the Respondent seven days to settle the outstanding amount of EUR 210,000, as well as to provide him with housing and a car as stipulated in the protocol, and integrate him into the first team.

19. Finally, the Claimant declared that, on 19 July 2013, he sent a notice of termination of the contract to the Respondent, with effect as from 20 July 2013.

20. In its reply to the claim, the Respondent requested that the Claimant’s claim be dismissed. In particular, the Respondent rejected “all the allegations and accusations made against [it]” and was of the opinion that the claim was “malicious” and that the requested amount for compensation “is contrary to logic and law demand”. The Respondent also argued that the mitigation proposed by the Claimant is extremely low (cf. point 37 below).

21. Moreover, the Respondent requested “to order [the Claimant] to bear all costs incurred with the present procedure”.

22. In support of its allegations, the Respondent argued that the contract and protocols were terminated by the termination agreement signed on 29 August 2012. In this context, the Respondent argued that the contract “was extended for one season” by means of another contract allegedly signed on 29 August 2012 and valid as from “01.06.2016” until “31.05.2017”.

23. In relation to the facts, the Respondent explained that the Claimant acted in an undisciplined manner since he did not participate in five training sessions after he was granted “permission” between 27 December 2012 and 20 January 2013.

24. In addition, the Respondent explained that on 26 April 2013 the Claimant went to Country B to undertake a surgery “without the knowledge” of the Respondent.

25. Finally, the Respondent explained that, at the end of the season 2012/2013, it was relegated into a lower division and consequently “fell into financial chaos”. As to the outstanding payments, the Respondent explained that it has fulfilled “all financial obligations”.

26. In his replica, the Claimant argued that the alleged termination agreement is irrelevant since the claimed amounts were due as from October 2012, i.e. after the conclusion of the termination agreement.

27. Moreover, the Claimant also noted “there is no (…) contract dated 29 June”, as stated in the termination agreement, and should read as 20 June 2011 instead of 29 June 2011. According to the Claimant, following the conclusion of the contract, the parties concluded a first protocol to the contract on 21 June 2011. Therefore, this could only have been signed after the conclusion of the employment contract, i.e. on 20 June 2011.

28. Furthermore, the Claimant explained that, if the contract was terminated on 29 August 2012 and the parties signed another employment contract (cf. point 22 above), it does not make sense that this was valid as from “01.06.2016”.

29. With these considerations in mind, the Claimant argued that the termination agreement is therefore “susceptible”. According to the Claimant, if the contract was terminated then the employment relationship between him and the Respondent was “governed by Protocol dated 1 August 2012 which document was not registered with the Football Federation of Country D, which of course would not be intention of the [Respondent]”. In this respect, the Claimant stated that the contract was still “valid in the season 2012/2013” as there are references to the application of it in different documents issued after the termination agreement, i.e. 29 August 2012.

30. In continuation, the Claimant explained that in the period from 27 December 2012 until 20 January 2013, the Respondent granted him an authorization to negotiate his transfer to another club. According to the Claimant, he “was not obligated to enter into another transfer agreement with a new club”. Consequently, and considering that he was still in a valid employment relationship with the Respondent, he “was obligated to resume its obligations with the [Respondent] as from 23 January 2013”.

31. In this respect, the Claimant pointed out that he did not miss five training sessions in the period from 21 to 23 January 2013 as the Respondent argued in its reply to the claim. In addition, the Claimant remarked that on 24 April 2013 the Respondent gave him permission to conduct a medical examination in Country G for the period between 20 and 26 April 2013. Furthermore, the Claimant stated that he also had an authorization from the Respondent for the period from 7 until 13 May 2013 to have an operation in Country G.

32. Finally, the Claimant argued that he had never acted in an undisciplined manner.

33. The Respondent submitted its duplica, reiterating its arguments and confirming its positions with regard to the claim and considered that “the contracts between the parties have been terminated and the parties have mutually released themselves”.

34. In this regard, the Respondent remarked that the contract and the protocol were terminated by means of the termination agreement signed between the parties on 29 August 2012. According to the Respondent, after this the contract “has been prolonged for 1 season” and “the relation between the parties must be considered within the context of this contract”.

35. In addition, the Respondent insisted that, on 26 April 2013, the Claimant decided to undergo a treatment in Country B “totally with his own will” and without providing any information. In view of said situation, the Respondent explained that on 3 July 2013 it notified the Claimant that “he failed on executing his performances” and that he “must continue to the trainings with our youth setup”.

36. In these circumstances, the Respondent stated that as a reaction to said notification, the Claimant decided to “unjustly” terminate the contract on 19 July 2013.

37. Finally, the Claimant informed in his claim that, on 4 October 2013, he concluded an employment contract with the club of Country E, Club F, valid as from the date of signature until 30 June 2015. This contract provides a monthly salary in the amount of 575 in the currency of Country E. Additionally, and upon FIFA’s request, the Claimant informed that, on 16 December 2014, he signed another contract with the same club, valid as from the date of signature until 30 June 2018. This contract provides a monthly salary in the amount of 474 in the currency of Country E.

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 18 May 2015. 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, 2017 and 2018 editions 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 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 2015, 2016 and 2018), and considering that the present matter was submitted to FIFA on 18 May 2015, the 2015 edition of the aforementioned 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 members of the Chamber entered into the substance of the matter, while emphasizing that, although having acknowledged all the above-mentioned facts, 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 and first of all, the DRC acknowledged that the Claimant and the Respondent concluded an employment contract valid as from 29 June 2011 until 31 May 2016. The Chamber found also important to bear in mind that the date of the contract is not entirely legible and can read as 20 June 2011 or 29 June 2011.

6. In continuation, the members of the Chamber observed that following the conclusion of a first “protocol” to the contract on 21 June 2011, the parties concluded, on 1 August 2012, a second “protocol” (hereinafter: the protocol) to the contract, valid as from the date of signature until and including the season 2016/2017.

7. Subsequently, the DRC took note that according to article 4 of the protocol, the Claimant was entitled, inter alia, to the following remuneration:

 For the 2012/2013 football season:

EUR 300,000 to be paid in ten instalments of EUR 30,000, from 20 August 2012 until 20 May 2013.

 For the 2013/2014 football season:

EUR 325,000 to be paid in ten instalments of EUR 32,500, from 20 August 2013 until 20 May 2014.

 For the 2014/2015 football season:

EUR 350,000 to be paid in ten instalments of EUR 35,000, from 20 August 2014 until 20 May 2015.

 For the 2015/2016 football season:

EUR 375,000 to be paid in ten instalments of EUR 37,500, from 20 August 2015 until 20 May 2016.

 For the 2016/2017 football season:

EUR 400,000 to be paid in ten instalments of EUR 40,000, from 20 August 2016 until 20 May 2017.

8. Moreover, the DRC noted that according to article 5 of the protocol the Claimant was entitled to “2 times return tickets for the [Claimant] and family members Country D/Country B/Country D”, as well as to a “fully furnished luxury house and car”.

9. In continuation, the members of the Chamber acknowledged that, on 29 August 2012, the Claimant and the Respondent concluded a “mutual termination and release agreement”, by means of which “the Parties wish to terminate their Employment Agreements dated 21 June 2011 and 29 June 2011 its entirety (and all charged protocols)” and “…fully, irrevocably and unconditionally release and forever discharge each other of and from any claims, liabilities, demands and obligations whether arising by statute or otherwise”.

10. The DRC further observed that, on 18 May 2015, he Claimant lodged a claim against the Respondent before FIFA and requested the payment of a total amount of EUR 1,671,904, plus “legal interest” detailed as follows:

 EUR 210,000, corresponding to seven outstanding instalments for the period comprised between 20 October 2012 until 20 May 2013 (i.e. EUR 30,000 per month);

 EUR 1,460,137, as compensation for breach of contract, corresponding to the “anticipated earnings available to the [Claimant] for the period that the employment contract still has to run”;

 EUR 1,767 for costs, i.e. medical examinations and airline tickets.

11. In continuation, the Chamber noted that the Claimant argued that the Respondent had failed to pay any salary since October 2012 (seven outstanding instalments of EUR 30,000 each). Therefore, and after having put the Respondent in default several times, the last one being on 12 July 2013, the Claimant terminated the contract on 19 July 2013.

12. The members of the Chamber also observed that the Claimant argued that termination agreement dated 29 August 2012 is “susceptible” and also irrelevant, since the claimed amounts were due as from October 2012, i.e. after the conclusion of the termination agreement. In this respect, the DRC also noted that the Claimant stated that the contract was still “valid in the season 2012/2013” as there are references to the application of it in different documents issued after the date of the termination agreement.

13. Conversely, the Dispute Resolution Chamber took due note of the fact that the Respondent, on its part, rejected the Claimant’s claim and stated that the contract and all protocols were terminated by means of the termination agreement signed on 29 August 2012.

14. In view of the dissent between parties, the Chamber first deemed it important to establish whether the Claimant and the Respondent were contractually bound in the terms described by the Claimant after 29 August 2012.

15. After having duly taken note of the aforementioned documentation presented by the Claimant and the Respondent, the members of the DRC referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to establish that the Claimant had not been able to prove beyond doubt that the parties had been bound by a contractual relationship under the terms described by the Claimant after the date of the termination agreement, i.e. 29 August 2012.

16. The DRC was eager to underline that the continuation of an employment relationship is not contested but according to the documentary evidence submitted to the file, the parties had indeed agreed upon the termination of the contract and all charged protocols by means of the termination agreement signed on 29 August 2012.

17. In this regard, the DRC pointed out that a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility. Therefore, the members of the Chamber concluded that as from 29 August 2012, the employment contract and all charged protocols were no longer binding between the Claimant and the Respondent.

18. As a consequence, the DRC decided that, since it was not possible to conclude with total certainty that the parties had been indeed bound by the contractual relationship under the terms described by the Claimant after 29 August 2012, there was no possibility for the Chamber to enter into the question whether or not such alleged employment contract and protocols had been breached by the Respondent.

19. All the above led the Dispute Resolution Chamber to conclude that the claim of the player has to be rejected.

III. Decision of the Dispute Resolution Chamber

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

*****

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