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

• Data decisione: 29 marzo 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 29 March 2018

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 March 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Roy Vermeer (The Netherlands), member

Alexandra Gómez (Uruguay), member

Wouter Lambrecht (Belgium), member

Joel Talavera (Paraguay), 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 4 May 2016, 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: the contract), valid as from 6 July 2016 until 5 July 2019.

2. According to clause 4 of the contract, the Claimant was to be remunerated as follows:

 USD 44,556 payable on 20 July 2016;

 Monthly remuneration of USD 13,000 “from July 2016 to June 2017”;

 USD 54,556 payable on 30 July 2017;

 Monthly remuneration amounting to USD 16,750 “from July 2017 to June 2018”;

 USD 79,556 payable on 30 July 2018;

 Monthly remuneration of USD 23,000 “from end of July 2018 to the end of June 2019”.

3. In addition, article 5 of the contract reads as follow:

“5. Contract Termination

5.1 The [Respondent] shall be entitled to terminate the employment contract of the [Claimant] immediately if the [Claimant]:

5.1.1 Shall be guilty of Gross Misconduct;

5.1.2 Shall fail to heed any final written warning given under the provisions of the [Respondent] disciplinary Policy; or

5.1.3 Is convicted of any criminal offense where the punishment consists of a sentence of imprisonment of two weeks or more (which is not suspended).

5.2 In case of the [Respondent] wants to terminate the contract anytime during the contract for any reason not mentioned in clause 5.1, the [Respondent] shall pay the [Claimant];

5.2.1 $40,000 (Forty Thousands US Dollars)”.

4. Through a correspondence dated 28 May 2017, the Respondent informed the Claimant that the “contract has been terminated by 28 May 2017”.

5. By means of a handwritten letter dated 30 May 2018, the Claimant declared:

“…to have received by email the termination letter of my contract in Club C on 28/05/2017. Being still pending the payment of the fine rescission [USD 40,000] along with the salary of December 2016 [USD 13,000]. I authorize the [Respondent] to make the transfer of my termination of contract and the December salary the following account and following amount. The following value 40,000 thousand USD about penalty of contract term and 13,000 thousand USD for December salary 2016. I authorize [the Respondent] to transfer to my agent […] the following amount 14,000 thousand in the currency of Country D from my salary of December about he’s commission…”.

6. On 14 July 2017, the Claimant lodged a claim before FIFA against the Respondent for the unilateral termination of contract without just cause. In particular, the Claimant claimed USD 611,112 as compensation for breach of contract plus 5% interest p.a. as of 28 May 2017 until the effective date of payment, amount that according to the Claimant corresponds to the residual value of the contract, i.e. from 28 May 2017 until 5 July 2019.

7. The Claimant further requested “any additional compensation this honourable Dispute Resolution Chamber deems appropriate due to the bad faith and misleading behaviour of the [Respondent]”.

8. In support of his claim, the Claimant held that the Respondent terminated the contract without just cause, based on an abusive, potestative and unilateral clause that infringes FIFA’s Regulations and that “should be deemed completely null and void”. According to the Claimant, clause 5 of the contract is a unilateral provision established in the exclusive benefit of the Respondent as it allows the Respondent to terminate the contract, anytime and without just cause, by simply paying USD 40,000, which is less than the 5% of the total value of the contract.

9. In continuation, the Claimant explained that after the termination of the contract, the Respondent imposed upon him, as a condition to leave, the drafting of a handwritten letter in which he confirmed that the Respondent owed him USD 40,000 as penalty for the termination of the contract.

10. In this regard, the Claimant explained that through the above-mentioned letter, he was simply confirming the reception of the Respondent’s termination letter, and that said letter could not be considered as an agreement regarding the termination of the contract.

11. In its reply to the claim lodged by the Claimant, the Respondent requested the complete rejection of the Claimant’s claim. In particular, the Respondent argued that the termination of the contract “occurred with the full consent” of the Claimant. In this respect, the Respondent held that “the present dispute entails a unilateral contractual termination by consent, rather than a litigious unilateral contractual termination”.

12. Subsequently, the Respondent stated that with his handwritten letter dated 30 May 2017, the Claimant had acknowledged the Respondent’s unilateral contractual termination, accepted the validity of clause 5.2.1 of the contract and the amount stipulated in it as penalty for compensation for the early contractual termination, also authorizing the Respondent to pay the amount of 14,000 in the currency of Country D to his agent as commission.

13. Furthermore, the Respondent argued that the Claimant was not forced to sign his letter dated 30 May 2018 and that he did so freely.

14. Within this context, the Respondent explained that it proceeded to perform the payment of USD 49,268, to the Claimant’s bank account, along with the payment of 14,000 in the currency of Country D (equivalent to USD 3,467 according to the Respondent) to the Claimant’s agent. According to the Respondent, these amounts covered the total USD 53,000 debt that the Respondent had with the Claimant and, consequently, the Respondent was no longer “legally obliged to pay the [Claimant] any further amount in relation to the contract or its termination”.

15. In view of the above consideration, the Respondent explained that it would refrain from entering into the analysis of the validity of clause 5 of the contract as this was fully validated by the Claimant.

16. In his replica, the Claimant explained that the wording used by the Respondent in its reply to the claim is contradictory. In particular, the Claimant explained that “there is no such thing as unilateral contractual termination by consent” as it was presented by the Respondent.

17. In continuation, the Claimant pointed out that the Respondent “failed to disclose the circumstances under which [he] accepted” the Respondent’s payment. According to the Claimant, the Respondent coerced him to accept the termination of the contract.

18. In this regard, the Claimant explained that after signing the contract with the Respondent, he was loaned to the club of Country D “Club E” from January 2017 to July 2017. According to the Claimant, “at the time he was loaned to [Club E] he already had salaries unpaid by [the Respondent]”. In addition to that, the Claimant explained that during the duration of the loan he “also remained mostly unpaid”. Within this context, and considering that the Respondent knew the Claimant’s financial struggles, the Claimant held that the Respondent informed him that it “would pay him his late salaries and an additional US$40,000.00 if – and only if- he consented with the unilateral termination”.

19. In support of these allegations, the Claimant submitted different “Whatsapp” audio messages from the alleged Respondent’s Transfer Matching System (hereinafter: TMS) manager. According to the Claimant, these demonstrate that the Respondent decided to unilaterally terminate the contract and forced him to accept the contract termination. In addition to that, the Claimant argued that said audios also prove that the Respondent would pay him his late salaries and handle his “release” only if he agreed on the contract’s termination.

20. With those considerations in mind, the Claimant argued that this is an “example of duress”. Therefore, the Claimant’s handwritten letter should not be considered as his consent to the “unilateral termination carried out by the [Respondent]”.

21. The Respondent submitted its duplica, reiterating its arguments and confirming its positions with regards to the Claimant’s claim.

22. In addition to that, the Respondent stressed that the Claimant was acting in bad faith as he was not forced to accept, and could have refused, the termination of the contract. In this respect, the Respondent pointed out that it does not make sense that the Claimant wrote, signed and sent the handwritten letter if he did not agree with its contents.

23. Finally, the Respondent referred to the“Whatsapp” audio messages provided by the Claimant and argued that it “rejects” them as it “ignores” their veracity and/or authenticity.

24. Upon FIFA’s request, the Claimant informed that he entered into another employment contract with the club of Country F, Club G, valid as from 5 August 2017 until 31 May 2018. This contract provides a total remuneration of USD 60,000 payable in ten instalments of USD 6,000 each. However, the Claimant informed that this contract was terminated by mutual agreement on 19 December 2017.

25. Additionally, the Claimant informed that on 17 January 2018 he signed another employment contract with the club of Country H, Club L, valid until 30 June 2018. This contract provides a total remuneration of USD 55,000 payable in five instalments of USD 11,000 each.

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 14 July 2017. Consequently, the 2017 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 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 2016 and 2018), and considering that the present matter was submitted to FIFA on 14 July 2017, the 2016 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. Firstly, the DRC acknowledged that, on 4 May 2016, the Claimant and the Respondent, signed an employment contract valid as from 6 July 2016 until 5 July 2019. According to clause 4 of the contract, the Claimant was to be remunerated as follows:

 USD 44,556 payable on 20 July 2016;

 Monthly remuneration of USD 13,000 “from July 2016 to June 2017”;

 USD 54,556 payable on 30 July 2017;

 Monthly remuneration amounting to USD 16,750 “from July 2017 to June 2018”;

 USD 79,556 payable on 30 July 2018;

 Monthly remuneration of USD 23,000 “from end of July 2018 to the end of June 2019”.

6. Thereafter, the DRC observed that article 5 of the contract stipulates:

“5. Contract Termination

5.1 The [Respondent] shall be entitled to terminate the employment contract of the [Claimant] immediately if the [Claimant]:

5.1.1 Shall be guilty of Gross Misconduct;

5.1.2 Shall fail to heed any final written warning given under the provisions of the [Respondent] disciplinary Policy; or

5.1.3 Is convicted of any criminal offense where the punishment consists of a sentence of imprisonment of two weeks or more (which is not suspended).

5.2 In case of the [Respondent] wants to terminate the contract anytime during the contract for any reason not mentioned in clause 5.1, the [Respondent] shall pay the [Claimant];

5.2.1 $40,000 (Forty Thousands US Dollars)”.

7. In continuation, the Chamber took note that through a correspondence dated 28 May 2017, the Respondent informed the Claimant that the “contract has been terminated by 28 May 2017”.

8. Subsequently, the members of the Chamber acknowledged that, by means of a handwritten letter dated 30 May 2018, the Claimant declared:

9. The DRC further observed that, on 14 July 2017, the Claimant lodged a claim before FIFA against the Respondent for the unilateral termination of contract without just cause. In particular, the Claimant claimed USD 611,112 as compensation for breach of contract plus 5% interest p.a. as of 28 May 2017 until the effective date of payment, amount that according to the Claimant corresponds to the residual value of the contract, i.e. from 28 May 2017 until 5 July 2019.

10. In this regard, the Chamber noted that the Claimant argued that the Respondent terminated the contract without just cause, based on clause 5 of the contract which according to the Claimant is a unilateral provision established in the exclusive benefit of the Respondent.

11. In addition, the members of the Chamber observed that the Claimant held that, after the termination of the contract, the Respondent coerced him to draft a handwritten letter in which he confirmed that the Respondent owed him USD 40,000 as a penalty for the termination of the contract. According to the Claimant, said letter cannot be considered as an agreement regarding the termination of the contract as he was simply confirming the receipt of the Respondent’s termination letter.

12. Conversely, the Dispute Resolution Chamber furthermore took due note of the fact that the Respondent, on its part, rejected the Claimant’s claim and stated that the Claimant accepted the termination of the contract as he wrote and signed the above-mentioned handwritten letter without any type of coercion.

13. Moreover, the Chamber acknowledged that the Respondent explained that it proceeded to perform the payment of USD 49,268, to the Claimant’s bank account, along with the payment of 14,000 in the currency of Country D to the Claimant’s agent. According to the Respondent, these amounts covered the total USD 53,000 established in the handwritten letter and consequently, the Respondent was no longer legally obliged to pay the Claimant any further amount of money.

14. After having carefully examined the parties’ positions, the Chamber held that the main issue it first and foremost had to deal with, was to determine whether the Claimant provided or not his consent to the termination of the contract.

15. In this regard, the members of the Chamber acknowledged that the Claimant wrote and signed a document containing a declaration in accordance with which he accepted the payment of USD 53,000 for the termination of the contract (USD 40,000 as “fine rescission” and USD 13,000 as outstanding salary of December 2016). Moreover, the DRC noted that the Claimant authorized the Respondent to transfer 14,000 in the currency of Country D to the Claimant’s agent as “commission”.

16. This being established, the DRC highlighted that according to the information submitted to the file, it has remained undisputed that the Respondent duly performed said payments (cf. point I.14 and I.17 above).

17. Regarding the argument of the Claimant that the Respondent coerced him to accept the termination of the contract, 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 failed to present relevant evidence in support of his allegation that he had been coerced, by the Respondent, into accepting the termination of the contract under the terms provided for in the contract.

18. In relation to the “Whatsapp” audio messages provided by the Claimant from the alleged Respondent’s TMS manager, which the Respondent rejected as it ignores their veracity and/or authenticity, the Chamber pointed out that it must be very careful with accepting and analysing documents and evidence provided by the parties. Having said that, the DRC concluded that the probative value of such audios is rather low and therefore, they cannot be considered as a substantial evidence proving the Claimant’s allegations.

19. In the light of all of the above, the members of the DRC concluded that by drafting the handwritten letter and accepting the payment of the USD 53,000 established in said document, the Claimant provided his consent to the termination of the contract and waived his right to claim any further monies from the Respondent.

20. Consequently, the Dispute Resolution Chamber decided that it must reject the claim put forward by the Claimant.

*****

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

www.tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives