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 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 6 January 2015, the player of Country B, Player A (hereinafter: the Claimant) and the club of Country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: contract), valid from 1 January 2015 until 30 June 2017.

2. According to clause 5 of the contract, the Claimant was entitled to receive the following salary:

a) “For the period 1 January 2015 – 30 June 2015 the gross amount of EUR 2,050 monthly”;

b) “For the period 1 July 2015 – 30 June 2017 the gross amount of EUR 2,700 monthly”.

3. Clause 12 of the contract stipulates that disputes, “resulting from the execution of the present [contract], are to be solved in the following order:

a) Amiably;

b) By bringing the dispute to the justice institutions of the Football Federation of Country D and the Professional Football League”.

4. A “Contract Termination Agreement” (hereinafter: the Termination Agreement), dated 7 December 2015, was signed by the Respondent and the Claimant. The Termination Agreement included the following two provisions:

a) “The Parties hereby amiably agree to terminate the Civil Convention XXX, and [the Claimant] is freely released from the club to join any club interested in his services.

b) Upon signing this document on 07.12.2015 [the Claimant] waives any financial claims or litigations in which the two parties may be involved at the signing date of the termination agreement.”

5. On 8 December 2015, the Claimant travelled to Country B. The return flight to Country D was fixed for 12 January 2016.

6. On 11 January 2016, an employee of the Respondent contacted the Claimant via WhatsApp. To the Claimant’s (alleged) surprise, the employee of the Respondent told him not to return to Country D. According to the text messages, the team coach did not require the Claimant anymore, and that “there is no sense” for him to return to Country D. The Respondent further informed the Claimant that it will pay the salary of December 2015, but that no further salary could be paid until the summer. Moreover, the Claimant’s clothes would be sent to him. The Respondent also told the Claimant that it will send him the signed Termination Agreement.

7. Further text messages were exchanged on 15 January 2016. The Claimant told the Respondent that he only received EUR 1,500 as monthly salary for December 2015, while his salary is EUR 2,000. In reply, the Respondent held that the Claimant received his salary “divided by 2: Small salary as a foreigner received by you every month and big salary received by you together with the players. For December small salary you got it in November with the club employees”. As regards the Claimant’s possessions, the Respondent told the Claimant that his luggage would be sent to him “next week”.

8. On 20 May 2016, the Claimant lodged a claim in front of FIFA, requesting EUR 48,600.

9. In this context, the Claimant “believes that the club must pay all wages due until the end of the contract. Whereas the anticipated breach of the contract took place on the date of 11 January 2016, the total amount of wages due to the end date of the contract (30 June 2017) corresponds to EUR 48.600”.

10. Furthermore, as per the Claimant, “the [Respondent] should pay a penalty for the [Claimant] because of the early termination of the contract and the unfair dismissal”.

11. As regards the signed contract termination agreement, the Claimant claims that he signed this document when he was hired, “with blank spaces and no date”. According to the Claimant, the Respondent simply used the pre-signed termination agreement and filled in the dates at a moment which was most convenient for the Respondent.

12. The Respondent replied on 13 July 2016 and requested that FIFA:

a) Dismisses the claim;

b) Condemns the Claimant to the payment in the favour of the Respondent of the legal expenses incurred.

13. In particular, the Respondent primarily contested the competence of FIFA and referred to Clause 12 of the contract (cf. I.3). According to the Respondent, the Chamber of Dispute Resolution of Country D meets the minimum procedural standards for independent arbitration, and as such considers that the claim should have been submitted to the Chamber of Dispute Resolution of Country D.

14. With regard to the substance of the claim, the Respondent argued that the contract was terminated by mutual agreement on 7 December 2015, and that the Claimant failed to provide any evidence to prove otherwise in this matter.

15. The Respondent further held that the WhatsApp text messages are “maliciously translated from the language of Country D into English”, and that the Claimant was aware of the termination agreement.

16. After being requested to do so by FIFA, on 12 August 2016 the Respondent sent further documentation in which it argued in favour of the competence of the Chamber of Dispute Resolution of Country D, including a copy of the “Regulations on the Status and Transfer of Players of Country D”.

17. On 15 September 2016 the Claimant submitted his replica. In his replica, the Claimant firstly insisted on FIFA’s competence, inter alia holding that “the Court of Country D cannot respect the principle of equal representation once the Club is from the Country and the player is foreign”.

18. Moreover, the Claimant reiterated that the contract did not end by mutual agreement. In particular, the Claimant referred to those parts of the text messages in which he shows his surprise regarding the Respondent’s statement that he is no longer needed.

19. The Claimant further stated that he never knew about an eventual signature of the Termination Agreement.

20. In its duplica of 2 June 2017, the Respondent maintained that the Termination Agreement was signed by mutual consent on 7 December 2015. Furthermore, the Respondent held that the Claimant never contested the validity of his signature on the Termination Agreement.

21. The Respondent further added that a national court of Country D “ruled the opening of the general insolvency proceedings against [the Respondent]. (…) (A)s of the opening the insolvency proceedings, all court and out-of-court actions or enforcement measures intended to monetize the receivables held against the debtor or the assets of the latter are to be suspended.”

22. On 4 April 2018, the Football Federation of Country D informed FIFA that the Respondent is still an affiliated member of the Football Federation of Country D. The Federation further stated that the Respondent is currently participating in “the League of Country D, organized by the Professional Football League in Country D”.

23. According to the information contained in the Transfer Matching System (TMS), the Claimant signed an employment contract with the club of Country B, Club E, on 15 July 2016. This contract, valid from 18 July 2016 until 5 December 2016, stipulates that the player would obtain a monthly salary of 880 in the currency of Country B.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 20 May 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. article 21 of the 2015, 2017 and 2018 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 shall adjudicate on employment-related disputes between a club and a player that have an international dimension.

3. Within this context, the Chamber understood that, in principle, it would be competent to decide on the present litigation which involves a player of Country B and a club of Country D regarding an employment-related dispute.

4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies and considered that the matter should have been submitted to the Chamber of Dispute Resolution of Country D instead (cf. I.13).

5. In a similar vein, the DRC recalled that in his replica, the Claimant insisted on the competence of FIFA, because, as per the Claimant, the Chamber of Dispute Resolution of Country D does not respect the principle of equal representation when the club and player do not share the same nationality (cf. I.17).

6. Taking into account the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the 2018 edition of the Regulations, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

7. In relation to the above, the Chamber deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract.

8. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear and specific jurisdiction clause.

9. In this respect, the Chamber recalled that Clause 12 of the employment contract stipulates that disputes “resulting from the execution of the [contract] are to be solved (…) by bringing the dispute to the justice institutions of the Football Federation of Country D and the Professional Football League”.

10. In view of the above, the members of the DRC were of the unanimous opinion that the employment contract did not make reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations, but, to the contrary, to two “justice institutions” of Country D. Therefore, the members of the Chamber deemed that said clause can by no means be considered as an exclusive arbitration clause in favour of the Chamber of Dispute Resolution of Country D, as asserted by the Respondent.

11. Thus, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance and that the claim of the Claimant is admissible.

12. Next, 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 claim was lodged on 20 May 2016, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

13. 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.

14. In this respect, the Chamber educed that, the Claimant and the Respondent signed an employment contract valid as from 1 January 2015 until 30 June 2017. The DRC further took into account the Termination Agreement. This Agreement, the Chamber recalled, contains the signature of both Claimant and Respondent, and appears to stipulate the date of 7 December 2015 as termination date of the employment contract.

15. In continuation, the Chamber took note of the Claimant’s arguments, who claimed that he never provided his consent to terminating the contract on 7 December 2015. Moreover, the Claimant argued that he had signed the Termination Agreement when he was hired, and that the Respondent subsequently filled in the dates on the Agreement at its own convenience.

16. Similarly, the Chamber referred to the Respondent’s point of view, who held that the employment contract was terminated by mutual agreement on 7 December 2015, in accordance with the Termination Agreement.

17. In this context, the Chamber unanimously agreed that the primary issue at stake is determining whether the Termination Agreement, which includes the parties’ signature, can be considered a valid and binding agreement.

18. In continuation, the DRC firstly established that the Termination Agreement contained the name of the parties. Secondly, the Chamber emphasized that the Termination Agreement included the signature of both parties, and that Claimant himself acknowledged signing the Termination Agreement (cf. I.11). Thirdly, the Chamber determined that the Termination Agreement provided 7 December 2015 as the date of contract termination.

19. In light of the above, the DRC was of the unanimous opinion that the Claimant had not sufficiently demonstrated that he did not provide his consent for contract termination, and/or that the date of 7 December 2015 was included by the Respondent at its own convenience.

20. Bearing in mind the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, the DRC therefore concluded that the arguments raised by the Claimant regarding the alleged non-validity of the Termination Agreement cannot be considered as valid, in accordance with the jurisprudence of the Dispute Resolution Chamber and the legal principle of pacta sunt servanda.

21. As a result, the Chamber established that, in accordance with the Termination Agreement, both parties agreed to waive “any financial claims or litigations in which the two parties may be involved at the signing date of the termination agreement” (cf. I.4.b), including the alleged residual value of the contract amounting to EUR 48,600, as requested by the Claimant (cf. I.9).

22. In view of the above, the Chamber concluded that the Claimant’s claim must be rejected in full.

III. Decision of the Dispute Resolution Chamber

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

2. The claim of the Claimant 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 (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:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives