F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision17 May 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 May 2018,

in the following composition:

Geoff Thompson (England), Chairman

John Bramhall (England), member

Stijn Boeykens (Belgium), member

Philippe Diallo (France), member

Jérôme Perlemuter (France), 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 12 January 2017, 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 1 January 2017 until 31 December 2017.

2. According to the contract’s schedule, the Claimant was entitled to receive the following monthly salaries at the end of each month:

- For January 2017 and February 2017, 28,600;

- For March 2017 and April 2017, 33,000;

- For May 2017 and June 2017, 35,200;

- For July 2017 until December 2017 35,500.

3. Clause 8 par. “e” of the contract stipulates: “if the [Claimant], without any valid reason, terminates this contract one-sided or without the mutual agreement with the [Respondent], then the [Respondent] has the right to claim compensation for the total remaining period of the contract not served”.

4. Likewise, clause 8 par. “f” reads as follow: “if the [Respondent], without any valid reason, terminates this contract one-sided or without the mutual agreement with the [Claimant], then the [Claimant] has the right to claim salary and other benefits payment for the total remaining period of the contract not served and the [Claimant] is released from all the administration aspect of the contract”.

5. According to the Respondent, on 29 May 2017, the Claimant’s agent signed a document labelled “Agreement to Terminate Football Player’s Contract” (hereinafter: the termination agreement), by means of which the Claimant allegedly “agreed to terminate the contract” with the Respondent.

6. On 25 August 2017, the Claimant lodged a claim before FIFA against the Respondent and requested the following amounts:

 35,200 corresponding to his outstanding salary for May 2017;

 246,400 as compensation for termination of the contract without just cause, amount that according to the Claimant corresponds to the residual value of the contract (salaries from June 2017 until December 2017).

7. Furthermore, the Claimant requested the imposition of sporting sanctions on the Respondent.

8. In his claim, the Claimant stated that on 1 June 2017, he was prevented from participating in the trainings with the rest of the Respondent’s squad. According to the Claimant, the Respondent took this decision because he did not accept to be transferred on loan to a club from Country E.

9. Within this context, the Claimant sent a letter to the club on 12 June 2017 requesting to be included again in the trainings of the Respondent’s squad. In addition to that, the Claimant also requested his outstanding salary for May 2017.

10. In continuation, the Claimant explained that the Respondent replied on 22 June 2017 arguing that the contract was terminated by means of the termination agreement.

11. In reply to said letter, on 23 June 2017 the Claimant sent a new correspondence to the Respondent. In this letter, the Claimant argued the he never agreed on the termination of the contract and requested once again his outstanding salary for May 2017 and the residual value of the contract (salaries from June 2017 until December 2017) as a compensation.

12. According to the Claimant, the Respondent terminated the employment contract unilaterally and without just cause by means of the termination agreement dated 29 May 2017. In this regard, the Claimant stated that he never signed and/or never agreed on the termination of the contract. In particular, the Claimant held that said document bears the signature of a different person in the section provided for signature by him.

13. In its reply to the claim lodged by the Claimant, the Respondent argued that the Claimant’s claim should be rejected. In particular, the Respondent explained that by means of the termination agreement the parties ended their employment relationship on 29 May 2017.

14. In particular, the Respondent explained that it offered the Claimant his outstanding salary for May 2017 and “ex gratia of 2 months’ salary” as a “settlement amount”.

15. In this context, the Respondent stated that the Claimant’s agent, Agent F, signed the termination agreement. According to the Respondent, the “agent was authorized by the [Claimant] to deal with his contract from the outset of the relationship between [the Respondent] and the [Claimant]” and “the agent signed the agreement to terminate on behalf of the [Claimant] with full knowledge and authority of the [Claimant]”.

16. In continuation, the Respondent argued that the “settlement amount” was given to the Claimant. According to the Respondent, in a meeting held on 16 June 2017, the Claimant “admitted and confessed [that] he went to the bank with the agent to cash out the settlement amount”.

17. In this respect, the Respondent argued that “cashing out the settlement amount must be taken as an acquiescence to the termination” and that the Claimant is trying “to get more money from [the Respondent] after agreeing to the earlier settlement amount”.

18. The Claimant submitted his replica, reiterating his arguments and confirming his position with regards to his statement of claim.

19. Moreover, the Claimant denied the content of the meeting held on 16 June 2017 and argued that in said meeting he requested his outstanding salaries and the continuation of the employment relationship.

20. Furthermore, the Claimant explained that the Respondent was not able to prove that his alleged agent was authorized to sign the termination agreement and/or that he received the alleged settlement amount.

21. The Respondent submitted its duplica reiterating its arguments and confirming its position with regards to the claim.

22. Finally, the Claimant informed that, on 1 August 2017, he signed a new employment contract with the Club of Country B, Club G, valid as from the date of signature until 30 June 2018. This contract provides a monthly salary in the amount of 14,700.

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 25 August 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 an 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 25 August 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 12 January 2017, the Claimant and the Respondent, signed an employment contract valid as from 1 January 2017 until 31 December 2017.

6. Along with the above, the Chamber noted that according to the contract’s schedule, the Claimant was entitled to receive the following monthly salaries at the end of each month:

- For January 2017 and February 2017, 28,600;

- For March 2017 and April 2017, 33,000;

- For May 2017 and June 2017, 35,200;

- For July 2017 until December 2017 35,500.

7. In addition, the Chamber took note that the Respondent held that, on 29 May 2017, the alleged Claimant’s agent signed a termination agreement on behalf of the Claimant, by means of which the Claimant allegedly “agreed to terminate the contract” with the Respondent.

8. The DRC further observed that, on 25 August 2017, the Claimant lodged a claim against the Respondent before FIFA requesting the payment of 35,200 corresponding to his outstanding salary for May 2017 and 246,400 as compensation for breach of contract.

9. In particular, the Chamber took note that the Claimant held that the Respondent terminated the employment relation unilaterally and without just cause by means of the above-mentioned termination agreement. In this regard, the members of the Chamber acknowledged that the Claimant stated that he never agreed on the termination of the contract arguing that the termination agreement was signed by a person who did not have authorization to sign on behalf of him.

10. In continuation, the Dispute Resolution Chamber took note that the Respondent on its part requested the complete rejection of the Claimant’s claim. In particular, the Chamber observed that the Respondent argued that the parties ended their employment relationship on 29 May 2017 by means of the termination agreement. According to the Respondent, the alleged Claimant’s agent, Agent F, signed said document on behalf of the Claimant and the Claimant accepted his salary for May 2017 and “ex gratia of 2 months’ salary” as a “settlement amount”.

11. After having carefully examined the parties’ positions, the DRC highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the termination agreement should be considered as a legally binding document between the parties.

12. In this regard, and after having carefully examined the documentation on file, the Chamber found it important to note that the termination agreement does not bear the signature of the Claimant.

13. Moreover, the members of the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). In this context, the DRC observed that the Respondent did not provide any evidence that confirms that the alleged Claimant’s agent was authorized to sign the termination agreement and/or that the Claimant accepted and received two monthly salaries as a “settlement amount”.

14. As a consequence of the above, the members of the Chamber concluded that the termination agreement cannot be considered as a valid and legally binding document between the parties. Consequently, the DRC decided that the Respondent terminated the contract without just cause on 29 May 2017.

15. Bearing in mind the previous consideration, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent.

16. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations as per the employment contract in accordance with the general legal principle of pacta sunt servanda.

17. In this respect, and taking into account the documentation presented by the Claimant in support of his petition and that the Respondent did not present any evidence that the Claimant’s salary for May 2017 (35,200) was paid, the DRC decided that the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of 35,200.

18. In continuation and having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation.

19. In this regard, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, 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.

20. 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.

21. Upon careful examination of the employment contract concluded between the Claimant and the Respondent, the members of the Chamber took note that article 8 par. “e” of the contract stipulates that “if the [Claimant], without any valid reason, terminates this contract one-sided or without the mutual agreement with the [Respondent], then the [Respondent] has the right to claim compensation for the total remaining period of the contract not served”.

22. Moreover, the DRC observed that clause 8 par. “f” of the contract establishes that “if the [Respondent], without any valid reason, terminates this contract one-sided or without the mutual agreement with the [Claimant], then the [Claimant] has the right to claim salary and other benefits payment for the total remaining period of the contract not served and the [Claimant] is released from all the administration aspect of the contract”.

23. The members of the Chamber duly analysed the contents of the above-mentioned clauses and acknowledged that they clearly provide for the amount of compensation payable in the event of a termination of the employment contract without just cause by either of the parties. In addition, the Chamber established that the pertinent clauses are fully reciprocal, since they grant the same rights to both contractual parties.

24. On account of the above, the Dispute Resolution Chamber concluded that the clause contained in 8 par. “f” of the contract has to be considered as valid and fully effective, i.e. that the compensation provided for in said article must be awarded to the Claimant, without taking into account any of the other criteria mentioned under art. 17 par. 1 of the Regulations, in compliance with the latter article of the Regulations.

25. Nevertheless, the Chamber acknowledged that said contractual clause did not include any predetermined amount of compensation; however, it clearly provided for a determinable amount of compensation payable by the party in breach of the contract to the other party, which corresponds to the remaining value of the contract.

26. In this regard, it appears that the remaining value of his employment contract can be calculated as being the amount of 248,200 relating to the Claimant’s financial entitlements, i.e. salaries from June 2017 until December 2017. However, the Chamber took into account that the Claimant requested 246,400 as compensation.

27. Taking into account all of the above, the Chamber decided that the Respondent has to pay to the Claimant the total amount of 246,400 as compensation for breach of contract.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is 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 35,200.

3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of 246,400.

4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received.

*****

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