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 8 March 2018

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 8 March 2018,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Stefano Sartori (Italy), member

Pavel Pivovarov (Russia), member

Muzammil bin Mohamed (Singapore), member

on the matter between the player,

Player A, Country B

as Claimant / Counter-Respondent

and the club,

Club C, Country D

as Respondent / Counter-Claimant

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 25 June 2015, the player of Country B, Player A (hereinafter: the Claimant / Counter-Respondent), and the club of Country D, Club C (hereinafter: the Respondent / Counter-Claimant), signed an employment contract (hereinafter: the contract), valid as from 1 July 2015 until 31 May 2016.

2. According to art. 4.1 of the contract, the Respondent / Counter-Claimant undertook to pay the Claimant / Counter-Respondent the total amount of USD 400,000, as follows:

- USD 120,000 as advance payment payable “at the [Claimant / Counter-Respondent]’s arrival for trainings”;

- USD 30,000 payable on 1 November 2015;

- USD 25,000 as monthly salaries, payable at the end of each month during 10 months.

3. In addition, the Respondent / Counter-Claimant undertook to provide the Claimant / Counter-Respondent with a car, accommodation and 9 round trip tickets for him and his family.

4. On 19 December 2015, the Claimant / Counter-Respondent put the Respondent / Counter-Claimant in default of payment of USD 130,000, setting a time limit of ten days, composed of his monthly salaries of September, October, November and December 2015, plus the contractual payment of USD 30,000.

5. According to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant neither replied to nor did it pay him any amount following his default notice.

6. On 3 January 2016, the Claimant / Counter-Respondent lodged a claim before FIFA maintaining that the Respondent / Counter-Claimant breached the financial terms of the contract without just cause.

7. In this context, the Claimant / Counter-Respondent requested that sporting sanctions be imposed upon the Respondent / Counter-Claimant and that it be ordered to pay him the amount of USD 573,500, which was detailed as follows:

- USD 30,000 corresponding to the outstanding contractual down payment;

- USD 100,000 corresponding to outstanding monthly remuneration (cf. point I. 4. above);

- USD 100,000 as compensation for breach of contract, consisting of his salaries for the months of January, February, March and April 2016;

- USD 10,000 in relation to accommodation (USD 2,500*4 months);

- USD 10,000 in relation to his car (USD 2,500*4 months);

- USD 13,500 in relation to round trip flight tickets (USD 1,500*9);

- USD 200,000 as damages or loss of revenue, based on the negative impacts his unemployment had on his career and on the interest other clubs had in recruiting him, whereas he inter alia used to play for the A national team of Country B;

- USD 100,000 for the mental hardship and negative impact on his image;

- USD 10,000 for his legal expenses.

8. The Claimant / Counter-Respondent explains that the Respondent / Counter-Claimant paid him USD 120,000 and his salaries for July and August 2015.

9. On 9 June 2017, the Respondent / Counter-Claimant replied to the claim and lodged a counterclaim against the Claimant / Counter-Respondent. In particular, the Respondent / Counter-Claimant asserted that the Claimant / Counter-Respondent breached the contract without just cause, and requested compensation in the amount of “at least” USD 100,000.

10. In addition, the Respondent / Counter-Claimant requested the imposition of sporting sanctions against the Claimant / Counter-Respondent.

11. According to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent received the entire advance payment for the amount of USD 120,000 in cash.

12. Moreover, the Respondent / Counter-Claimant stated that, on 18 August 2015, after the pre-season, the Claimant / Counter-Respondent complained of an injury which the medical tests afterwards showed it was a chronic injury that reappeared. In this respect, the Respondent / Counter-Claimant stated that it provided the Claimant / Counter-Respondent with subsequent therapy, but that he refused to commit to it. In particular, the Respondent / Counter-Claimant explained that the Claimant / Counter-Respondent did not attend therapy sessions regularly, and that, as a consequence, it sent him a letter on 10 September 2015 requesting him to clarify his reasons for absence and warning him that he would be sanctioned in case of being absent again.

13. In this respect, the Respondent / Counter-Claimant stated that the Claimant / Counter-Respondent did not commit to pursue his therapy and continued to be absent. In support of its allegation, the Respondent / Counter-Claimant attached a document signed by its coach with, inter alia, the following contents:

- 22 October 2015: “[the Claimant / Counter-Respondent] had a fighting with Player E”

(…)

- 6 November 2015: “[the Claimant / Counter-Respondent] had a fighting with Player F and Player G in the family game”

- 11 November 2015: “[the Claimant / Counter-Respondent] went out of training without permission”

(…)

- 26-27 November 2015: “From these days [the Claimant / Counter-Respondent] never came back to the trainings”

14. As a consequence, the Respondent / Counter-Claimant declared that it decided to sanction the Claimant / Counter-Respondent by deducting the amount of USD 16‚000 from his salary.

15. Subsequently, the Respondent / Counter-Claimant explained that, on 26 December 2015 it sent a new letter to the Claimant / Counter-Respondent to complain of the Claimant / Counter-Respondent’s absence in attending a therapy session on that same date, but that the Claimant / Counter-Respondent never replied.

16. In addition, the Respondent stated that “the [Claimant / Counter-Respondent] escaped from the [Respondent / Counter-Claimant] and get into negotiations with new clubs despite his contract was still valid”.

17. Moreover, the Respondent / Counter-Claimant considered that the Claimant / Counter-Respondent acted as “a trouble maker” since he “was involved in many fights and was not committed to attend training or therapy sessions.” In support of its allegation, the Respondent attached a letter dated 24 October 2015, signed by its “Professional Manager” and addressed to the Claimant / Counter-Respondent, with the following contents:

“as you still breach the contract clauses, by making troubles and fighting (…), in addition to your continuing absence of your training sessions and your medical treatment sessions, the club administration decided to continue freezing your dues (…), and this is a last opportunity that the administration grants to you to commit to the signed contract, and accordingly, we grant you the right to appeal this decision within ten days from the date of this letter.”

18. Finally, the Respondent / Counter-Claimant stated that it sent a final warning to the Claimant / Counter-Respondent on 29 December 2015 before submitting the matter to “the Professional Committee”.

19. In his replica and reply to the counterclaim, the Claimant / Counter-Respondent stated that it is absolutely false that he was not committed to the therapy program provided by the Respondent / Counter-Claimant for his injury. Nevertheless, the Claimant / Counter-Respondent considered that, should this be the case, the Respondent / Counter-Claimant should have brought him before a disciplinary commission in order to defend himself. The Claimant / Counter-Respondent further denied having received any default letter from the Respondent in this regard, and considered that the documents provided by it are not a reliable evidence.

20. Moreover, the Claimant / Counter-Respondent denied having been absent as from November 2015, and considered that the documentation provided by the Respondent / Counter-Claimant is not sufficient. In particular, the Claimant / Counter-Respondent considered that “in all over the world, when there is absence of an employee ‚ the employer, in order to save his legal interests, recurs to a notary public to note the alleged absence from work by the employee.”

21. Thus, the Claimant / Counter-Respondent considered that the Respondent / Counter-Claimant’s counterclaim is only an attempt to divert the DRC from the breach of the financial terms of the contract by the Respondent / Counter-Claimant.

22. In view of the above, the Claimant / Counter-Respondent considered that the counterclaim of the Respondent / Counter-Claimant had to be fully rejected.

23. In its final comments, the Respondent / Counter-Claimant considered that the Claimant / Counter-Respondent’s response to the counterclaim brings nothing to the case, since he failed to provide any evidence of his commitment to the Respondent / Counter-Claimant. In addition, the Respondent / Counter-Claimant understood that it is a player’s responsibility to commit to a therapy program set by a club in case of an injury.

24. Furthermore, the Respondent / Counter-Claimant considered that the Claimant / Counter-Respondent also gravely breached the contract by travelling abroad without informing it or asking permission despite his contract still being in force.

25. In addition, the Respondent / Counter-Claimant underlined that it “had never received any termination letter from the [Claimant / Counter-Respondent] which means that the contract was still in force, and the [Claimant / Counter-Respondent] was bound by it till the end.”

26. Moreover, the Respondent / Counter-Claimant considered that, should it pay compensation to the Claimant / Counter-Respondent, the amount of EUR 250,000 should be deducted from it since “the average of football stars of Country B is 50,000€ per month” and the Claimant / Counter-Respondent signed with a club of Country B in “June 2016” and “the remaining duration of the contract is 5 months, January, February, March, April and May 2016”.

27. According to the information available in the Transfer Matching System (TMS), the Claimant / Counter-Respondent transferred on 8 September 2016 from the Respondent / Counter-Claimant to the club of Country B, Club H, “out of contract”. Within this context, the “Proof of last contract end date” corresponds to the Claimant / Counter-Respondent’s contract with the Respondent / Counter-Claimant.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed 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 3 January 2016. 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 DRC referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2018) it is competent to deal with the matter at stake, which concerns an employment-related disputes between a club and a player with an international dimension between a player of Country B and a club of Country D.

3. The competence having been established, the Chamber decided thereafter to analyze which edition of the Regulations on the Status and Transfer of Players 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 3 January 2016, the 2015 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Having established the foregoing, and entering into the substance of the matter, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. 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 Chamber acknowledged that, on 25 June 2015, the parties concluded a contract valid as from 1 July 2015 until 31 May 2016.

6. Subsequently, the Chamber noted that the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant on 3 January 2016 asking to be awarded with outstanding salaries and compensation for breach of the employment contract.

7. Conversely, the Chamber noted that, on 9 June 2017, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent, asserting that the latter breached the contract without just cause, and requested compensation in the amount of “at least” USD 100,000.

8. In view of the above, the Chamber therefore considered that the matter at stake essentially relates to the possible breach of contract without just cause and the consequences deriving thereof.

9. Within this context, the members of the Chamber understood that they should first and foremost determine whether any of the parties prematurely terminated the contract and on which basis.

10. In this regard, the Chamber noted that, on 19 December 2015, the Claimant / Counter-Respondent put the Respondent / Counter-Claimant in default of payment of USD 130,000, setting a time limit of ten days, composed of his monthly salaries of September, October, November and December 2015, plus the contractual payment of USD 30,000.

11. Thereafter, the members of the Chamber observed that the Claimant / Counter-Respondent lodged a claim before FIFA against the Respondent / Counter-Claimant on 3 January 2016.

12. Within this context, the Chamber recalled its own jurisprudence in this regard as well as the contents of the claim lodged by the Claimant / Counter-Respondent, and unanimously arrived to the conclusion that, in the matter at stake, the Claimant / Counter-Respondent had a will to unilaterally terminate the contract by lodging his claim before FIFA on 3 January 2016. Therefore, the members of the Chamber understood that the contract was de facto terminated on this same date.

13. After determining that the contract was unilaterally terminated by the Claimant / Counter-Respondent on 3 January 2016, the members of the Chamber went on to analyze whether the Claimant / Counter-Respondent had just cause for the premature termination of said contract.

14. In this regard, the Chamber understood that the essential arguments from the Claimant / Counter-Respondent in order to justify the early termination of the contract are referred to the contents of his default letter dated of 19 December 2015, i.e. the non- payment of his monthly salaries of September, October, November and December 2015, plus the contractual payment of USD 30,000, for a total amount of USD 130,000.

15. Conversely, the Chamber examined the arguments from the Respondent / Counter-Claimant in this regard, according to which the Claimant / Counter-Respondent was frequently absent and exposed a lack of commitment with the Respondent / Counter-Claimant. The Chamber also noted that, according to the Respondent / Counter-Claimant, on 18 August 2015, the Claimant / Counter-Respondent complained of an injury and that, as a result, it provided the Claimant / Counter-Respondent with subsequent therapy, but that the latter refused to commit to it.

16. In this respect, the DRC recalled the basic principle of burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

17. In view of the above, the DRC observed the documentation and evidence provided by the Respondent / Counter-Claimant in support of its allegations, and observed that it failed to provide any convincing medical evidence in relation to the Claimant / Counter-Respondent’s alleged injury, as well as to its subsequent treatment and the Claimant / Counter-Respondent’s alleged refusal to commit to said treatment.

18. In addition, the DRC further noted that the documentation provided by the Respondent / Counter-Claimant did not support in a convincing manner the Claimant / Counter-Respondent’s alleged lack of commitment or frequent absences.

19. As a result, the members of the Chamber unanimously concluded that the Respondent / Counter-Claimant failed to provide any convincing evidence in support of its allegations and that, in addition, it did not prove that, as supported by the Claimant / Counter-Respondent, the latter’s monthly salaries of September, October, November and December 2015, plus the contractual payment of USD 30,000, for a total amount of USD 130,000, were actually paid.

20. Consequently, and taking into account that, as of the date of termination of the contract, the Respondent / Counter-Claimant had a substantial debt towards the Claimant / Counter-Respondent, the members of the Chamber unanimously concluded that the Respondent / Counter-Claimant had just cause to terminate the contract on 3 January 2016.

21. In view of the above, the Chamber decided that, in accordance with the general legal principle of “pacta sunt servanda”, the Claimant / Counter-Respondent is entitled to receive his outstanding remuneration for the months of September, October, November and December 2015, plus the contractual payment of USD 30,000, for a total amount of USD 130,000 and that, consequently, the Respondent / Counter-Claimant shall pay the outstanding amount of USD 130,000 to the Claimant / Counter-Respondent.

22. Subsequently, the Chamber focused its attention on the consequences of the breach of contract in question and, in this respect, it decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant / Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant compensation for breach of contract on the basis of the relevant employment contract.

23. In continuation, the Chamber outlined that, in accordance with said provision, 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 / Counter-Respondent 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 whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a 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 / 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. 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.

26. Bearing in mind the foregoing as well as the claim of the Claimant / Counter-Respondent, the Chamber proceeded with the calculation of the monies payable to the Claimant / Counter-Respondent under the terms of the employment contract until 31 May 2016 (i.e. the original date of expiration of the contract). In this regard, the members of the Chamber observed, as detailed above, that under the contract, the Respondent / Counter-Claimant agreed to pay to the Claimant / Counter-Respondent a monthly remuneration of USD 25,000. Consequently, the members of the DRC established that, accordingly, the Claimant would have earned the amount of USD 100,000, which serves as the basis for the calculation of the payable compensation.

27. In addition, the Chamber further noted that, in accordance with the contract, the Claimant / Counter-Respondent was entitled to 9 round trip tickets for him and his family. Within this context, and following the Claimant / Counter-Respondent’s request as well as the information provided by FIFA Travel, the Chamber further decided that the Claimant / Counter-Respondent was entitled to two return tickets to his home country after the termination of the contract, as contractually provided, for the amount of CHF 635 each (i.e. CHF 1,270 in total). Therefore, the Chamber decided that the amount of CHF 1,270 should be paid by the Respondent / Counter-Respondent for two air tickets for his return to his home country.

28. In continuation, the Chamber verified as to whether the Claimant / Counter-Respondent 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.

29. In this regard, the DRC recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

30. Accordingly, the Chamber observed that, following the information available in the TMS, the Claimant / Counter-Respondent transferred on 8 September 2016 from the Respondent / Counter-Claimant to the club of Country B, Club H, “out of contract”.

31. As a result, the Chamber assumed that the Claimant / Counter-Respondent was only able to conclude a new employment contract after the end of the original expiration date of the contract with the Respondent / Counter-Claimant and that, as a result, the Claimant / Counter-Respondent was unable to mitigate his damages during the relevant period.

32. In conclusion, for all the above reasons, the Chamber decided to accept the Claimant / Counter-Respondent’s request and that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent the amounts of USD 100,000 and CHF 1,270 as compensation for breach of contract without just cause, which is considered by the Chamber to be a reasonable and justified amount as compensation.

33. Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by the parties.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 130,000.

3. The Respondent / Counter-Claimant 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 amounts of USD 100,000 and CHF 1,270.

4. In the event that the amounts due to the Claimant / Counter-Respondent are not paid by the Respondent / Counter-Claimant within the stated time limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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

6. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

7. The counterclaim of the Respondent / Counter-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

Enclosed: CAS directives