F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision25 January 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 January 2018,
in the following composition:
Geoff Thompson (England), Chairman
Roy Vermeer (The Netherlands), member
Tomislav Kasalo (Croatia), member
Pavel Pivovarov (Russia), member
Daan de Jong (The Netherlands), 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 11 January 2016, the player of Country B, Player A (hereinafter: the Claimant or the player) and the club of Country D, Club C (hereinafter: the Respondent or the club) signed an employment contract valid from 23 January 2016 until 31 December 2017 (hereinafter: the contract).
2. According to the contract, the Claimant was entitled to receive the following amounts:
An annual income for the “2016 season” of 12,600,000 in the currency of Country D;
o An advanced payment of 1,800,000 in the currency of Country D upon signing the contract;
First payment of 900,000 in the currency of Country D ‘within Jan 15, 2016’;
Second payment of 900,000 in the currency of Country D ‘within April 5, 2016’;
o A monthly salary of 900,000 in the currency of Country D for 2016;
An annual income for the “2017 season” of 14,400,000 in the currency of Country D;
o An advanced payment of 2,520,000 in the currency of Country D upon signing the contract for 2017;
First payment of 1,260,000 in the currency of Country D ‘within Jan 15, 2017’;
Second payment of 1,260,000 in the currency of Country D ‘within April 5, 2017’;
o A monthly salary of 990,000 in the currency of Country D for 2016;
Three Business (round trip tickets) to the Claimant per year;
A house and car allowance of 50,000 in the currency of Country D per month;
A bonus of 1,800,000 in the currency of Country D if the club is promoted to the Country D’s highest football league, provided that the player participates in 60% of all the games.
3. Article 8.3 of the contract provides that ‘(t)he Party is in breach or in violation of any Clause under this Agreement, Club C shall have the right to terminate the Agreement without any compensation and claim for any damages from the Player’.
4. Article 8.4 of the contract provides that ‘Club C reserve [sic] the right to terminate the player it [sic] he engage in illegal Activities or violate Criminal Laws of Country D’. Article 9 of the contract stipulates that ‘(t)his agreement shall be construed and interpreted in accordance with and governed by the laws of Country D the parties hereto agree to submit to the jurisdiction of the competent court in Country D’.
5. On 8 February 2017 the Claimant lodged a claim before FIFA against the club alleging a unilateral termination of the contract without just cause by the club and requested the following:
24,308,085 in the currency of Country D corresponding to the residual amount of the contract as from 1 March 2016 until 31 December 2017 minus his remuneration with his new club, Club E (Country F), from 1 July 2016 to 31 December 2016, plus interest of 5%, as follows:
o 10 monthly instalments (from March 2016 until December 2016) of 900,000 in the currency of Country D each;
o A second instalment of the advanced payment that was scheduled to be paid on 5 April 2016 in the amount of 900,000 in the currency of Country D;
o An advanced payment of 2,520,000 in the currency of Country D upon signing the contract for 2017;
o 12 monthly instalments (from January 2017 until December 2017) of 990,000 in the currency of Country D each;
o 1,100,000 in the currency of Country D corresponding to the player’s house and car allowance (from March 2016 until December 2017);
o Three round trip business class tickets per year for the player and his family, of which the value, as estimated by the player, amounts to 1,011,151 in the currency of Country D (corresponding to 28,848 USD);
o Minus 2,103,066 in the currency of Country D (corresponding to 60,000 USD) earned with Club E(cf. point I.25 below);
3,600,000 in the currency of Country D as specificity of sport corresponding to the months of March – June 2016, i.e. the period in which the player had no income, plus 5% interests;
Sanctions imposed on the club for the breach of contract inside the protected period in accordance with art. 17 (4) of the FIFA Regulations;
The attorney’s fees at the rate of 20% on the value of the conviction.
6. The Claimant highlights that on 19 February 2016 he was involved in a traffic accident, in which a motorcyclist died, while driving to the club for training sessions, causing the Police of Country D to open investigations against him.
7. On 1 March 2016 the club’s Vice President summoned the Claimant to a meeting where he was presented with a “Termination Letter” to sign. The letter included the following: ‘The reason of your termination is violation of section 8.4 according to the incident on February 19, 2016 (…). The case office charged you with criminal offense and had allowed bali [sic] to you on February 29, 2016. Please also note that your salary and all other benefits will end on the termination date including your (…) plane tickets.’ Although the Claimant refused to sign the Termination Letter, the Respondent considered the contract with the Claimant as terminated.
8. On 3 March 2016 the Department of Justice of Country D temporarily imprisoned the Claimant until 14 March 2016.
9. On 16 March 2016 the Claimant and the family of the deceased motorcyclist concluded a “memorandum of agreement regarding compensation for damages to reduce the unfavourable effects of a criminal case” before the “Police Station of the District of Country D”, by means of which the player agreed to compensate the family with 620,000 in the currency of Country D for “damages and fines”. The Claimant and the family further agreed not to press civil or criminal charges.
10. On 29 March 2016 the Court of Country D closed the criminal case against the Claimant and fined him for a total amount of 10,000 in the currency of Country D.
11. On 30 March 2016 the Claimant’s agent sent the Respondent an email asking whether the club still upheld the Claimant’s dismissal now that the Court of Country D closed the case. However, the Respondent never responded to this email.
12. The Claimant further states that on 24 February 2016 the Respondent tried to contract another player of Country B (Player G) who plays on the same position as the Claimant, even though the Respondent had already completed the full quota of five foreign players in the team. After Player G’s refusal to join the Respondent, the Respondent approached a third player of Country B (Player H), offering him flight tickets and the possibility to play for the Respondent. The Claimant is thus of the opinion that the Respondent used the traffic accident as an excuse to terminate the employment contract.
13. In its reply, the Respondent held that at the time of the accident the Claimant had not yet obtained a driver’s license pursuant to law of Country D and that, for this reason, the Respondent had refused to provide the Claimant with a car. Nonetheless, after deciding to buy a car himself, the Claimant ‘committed a negligence at the wheel’ on 19 February 2016 while driving to a training session.
14. The Respondent felt that ‘the question of the future of the player [had] to be asked’ and that it would ‘be difficult to keep the player in the squad according to the emotion that might raise such a case in the spirit of the supporters. And under these circumstances it’s not unfair nor illegal trying to think about an alternative and contact other players’.
15. Furthermore, the Respondent found the behaviour of the Claimant during the enquiry highly questionable, given that, at first, he ‘refused to recognize any penal responsibility even though it was clearly incurred’. Moreover, the Respondent highlighted that the Claimant finally pleaded a partial confession on 29 February 2016 and that he was sentenced to an imprisonment of two years and a 10.000 in the currency of Country D fine, but that the court suspended the imprisonment for one year because the father and the mother of the deceased had been compensated and that the Claimant needed to travel.
16. The Respondent does not agree with the content of the Claimant’s agent email of 30 March 2016, in which he claimed to be innocent. For the Respondent, the Claimant was clearly guilty of a criminal offence.
17. As regards the fact that the employment contract was terminated on 1 March 2016, while the court case was closed on 29 March 2016 (28 days later), the Respondent responded that ‘it was not possible to keep the player. It was also not possible to wait for the final sentence that was supposed to be pronounced much later and in any event after deadline for the players’ registration and the transfer period (7 March)’.
18. Even though the Claimant was contracted on 11 January 2016, by the time the Respondent unilaterally terminated the contract on 1 March 2016 it had not yet registered the Claimant. According to the Respondent, clubs of Country D register their foreign players at the last moment before the transfer deadline, in order to avoid registering a player who is suddenly injured or a player who is not eligible to play for any other reason.
19. Furthermore, basing itself on the wording of Article 9 of the employment contract (cf. point I.3 above), the Respondent primarily concludes that the FIFA DRC is not competent to judge the Claimant’s claim, since the parties agreed to submit themselves to the jurisdiction of the competent court in Country D.
20. In the alternative event the DRC was to consider itself competent, the Respondent highlights the validity of Article 8.4 of the employment contract (cf. point I.3 above). According to the Respondent, the inclusion of such article in the contract is perfectly in line with the principle of contractual freedom. Although the Claimant seems to consider that bad luck caused the accident, the Respondent deems that it was his own negligence. In that light, the Respondent reiterated that the Claimant was sentenced to a two-year imprisonment. Article 8.4 needs to be considered valid in order to prevent an open door of total permissiveness and an encouragement for players not to control their way of life.
21. The club claims that the Chamber should reject the Claimant’s claim in its entirety and that the Claimant covers all of the club’s legal expenses, i.e. 10.000 USD.
22. In its replica, the Claimant holds that the employment contract did not include a clear jurisdiction clause of a specific court in Country D. Furthermore, Article 9 of the contract does not give exclusive jurisdiction to a Labour Court in Country D. The fact that the Claimant has never waived his right to lodge a claim in front of FIFA is demonstrated by the claim at hand.
23. According to the Claimant, by stating that ‘it was not possible to keep the player. It was also not possible to wait for the final sentence that was supposed to be pronounced much later and in any event after deadline for the players’ registration and the transfer period’, the Respondent confirmed that it unilaterally terminated the employment contract with the Claimant on 1 March 2016 in order to hire another player before the end of the transfer window on 7 March 2017, and that this was done prior to the final sentence of the Criminal Court of Country D. Similarly, in its response the Respondent also confirmed that two months after signing the employment contract it had never registered the Claimant.
24. In its duplica, the Respondent pointed out that although the Claimant considered Article 9 of the contract too vague to be considered a jurisdiction clause, it considers that the competence of FIFA is clearly excluded under Article 9, as this corresponded to the will of the parties when agreeing upon such a clause. In any case, the words ‘competent court in Country D’ cover any kind of court, including labour courts. The fact that the Claimant argued that the contract should have included “labour courts” demonstrates that he himself understands that ‘court in Country D’ includes labour courts.
25. Lastly, the Respondent repeated its argument that in Country D it is normal to wait until the last moment to register foreign players, subject to quota. The quota is limited and a player can get seriously injured at any time. The clubs often keep a possibility to recruit another player in case of a last minute problem. The clubs also have the right to conclude a mutual termination in case of poor performance.
26. On 1 July 2016 the Claimant signed a new employment contract with the club of Country F, Club L as from the date of signature until 31 December 2016. The Claimant would be remunerated for a total of 60,000 USD, paid in six instalments of 10,000 USD per month.
27. According to the Claimant and the information contained in TMS, since 1 January 2017 the Claimant is unemployed.
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 8 February 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 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 2016) 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 on the grounds that the employment contract concluded with the Claimant established the ‘competent court in Country D’ as the competent body to deal with the case.
5. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent, as the jurisdiction clause included in the contract was not clear and specific enough.
6. 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.
7. 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.
8. In this respect, the Chamber recalled that Article 9 of the employment contract stipulates that: ‘(t)his agreement shall be construed and interpreted in accordance with and governed by the laws of Country D the parties hereto agree to submit to the jurisdiction of the competent court in Country D’.
9. Having examined the relevant provision, the Chamber came to the unanimous conclusion that Article 9 of the employment contract does not constitute a clear jurisdiction clause in favour of one specific court in Country D, since it is drafted in a generic manner. Consequently, the Chamber understood that the parties actually never clearly and undisputedly agreed upon a specific jurisdiction.
10. 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.
11. 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 (edition 2016) and considering that the present claim was lodged on 8 February 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.
12. 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.
13. In this respect, the Chamber recalled that, the Claimant and the Respondent signed an employment contract valid as from 23 January 2016 until 31 December 2017. The employment contract was subsequently terminated by the Respondent on 1 March 2016, after the Claimant was involved in a deadly traffic accident, as per the documentary evidence on file.
14. In continuation, the Chamber took note of the Claimant’s arguments, who considered that being involved in a traffic accident is not a just cause for the club to terminate his contract. The Chamber also noted that the Claimant argued that, since the criminal proceedings were closed on 29 March 2016 by the Court of Country D, the employment contract could in theory once again be executed. Thus, the Claimant deems that the Respondent did not have a just cause to terminate the contract and that it did so before the criminal decision had become final and binding, violating the principle of the presumption of innocence.
15. Similarly, the Chamber referred to the Respondent’s point of view, who held that at the time of the accident, it had not yet provided the Claimant with a car, because he had not yet obtained a valid driver’s license of Country D. The Chamber further understood that, according to the Respondent, it was not possible to register the Claimant while he was awaiting trial in front of the Criminal Court of Country D, since the deadline to register players would pass before the closing of the criminal proceedings. Thus, the Respondent deems to have terminated the employment contract with the Claimant on 1 March 2016 with just cause and in line with Articles 8.3 and 8.4 of the contract.
16. In this context, the Chamber unanimously agreed that the primary issue at stake is determining whether the Respondent indeed had a just cause to terminate the contract with the Claimant on 1 March 2016. In particular, the Chamber acknowledged the very exceptional circumstances of the matter at hand and concluded that, in order to determine whether the Respondent had or not a just cause to terminate the contract, it would have to assess whether the aforementioned exceptional circumstances in fact rendered the continuation of the employment relationship between the Claimant and the Respondent impossible. In this respect, the Chamber deemed it essential to make a brief chronological recollection of the facts that preceded the termination of the contract by the Respondent, based on the documentary evidence on file.
17. In this regard, the DRC noted that the player signed his employment contract on 11 January 2016. On 19 February 2016 he caused the traffic accident, which led to the death of a motorcyclist. As a result of the incident, the Justice Institutions of Country D launched criminal proceedings against him. On 1 March 2016, the club terminated the contract with the player, prior to even registering him with the Football Association of Country D. On 29 March 2016, the Court of Country D closed the criminal proceedings against the player, declaring him guilty of a criminal offense. The player had to pay a fine and was sentenced to two years in prison. The prison sentence, however, was suspended by one year because the player had compensated the family of the deceased.
18. Furthermore, the Chamber deemed it essential to point out that it remained uncontested by the player that, at the time he concluded a contract with the club, he did not possess a valid driving licence in Country D and that, due to this particular circumstance, the club refused to provide him with a vehicle, as alleged by the club in its reply to the player’s claim. Notwithstanding the foregoing, the player still acquired a car and made use of it, eventually causing a traffic accident that resulted in the death of a motorcyclist.
19. Before entering the analysis of the justice of the contract termination – or the lack of it – by the Respondent and for the sake of completeness of its analyses, the Chamber deemed important to emphasise that, even though the contract appears to have never been registered with the Football Association of Country D, this fact has absolutely no influence on the validity of the contract, duly signed between the Claimant and the Respondent. This is in line with the Chamber’s longstanding jurisprudence, according to which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are of the sole responsibility of a club and on which a player has no influence.
20. Having said that, the Chamber – prior to an eventual analysis of the validity of Articles 8.3 and 8.4 of the contract – noted from the aforementioned sequence of facts displayed in points II.17 and II.18 above – which either are supported by documentary evidence or remained uncontested by the counterparty – that the Claimant uncontestedly and deliberately disregarded the club’s decision not to provide him with a vehicle due to the fact that he did not possess a valid permission to drive in Country D and proceeded to acquire a car on his own account, getting involved in a deadly traffic accident and consequently in criminal proceedings. In view of the foregoing circumstances, the Chamber concluded that this conduct of the Claimant naturally affected the trust of the Respondent in him, in particular with regard to his carelessness with following the instructions issued by his employer and even law of Country D, causing an irreparable harm to the relationship between the parties and the impossibility of the continuation of the employment contract. Consequently, the Chamber deemed it impossible for the Respondent to maintain an employment relationship with a player who so blatantly disobeyed the Respondent’s orders and who did not act in good faith from the very beginning of their contractual relationship.
21. The Chamber also deemed it important to specifically address the Claimant’s argument that the contract could not have been terminated by the Respondent with just cause on 1 March 2016, since a final and binding conviction was only issued on 29 March 2016 and the principle of the presumption of innocence would have been disregarded, and since his imprisonment was even suspended due the conclusion of an agreement with the family of the deceased. In this light, the Chamber first wished to underline that the DRC is not in a position to question the validity nor the proportionality of a judgment by a national criminal court. Furthermore, the Chamber wished to draw the parties attention to the fact that the just cause for the termination is, in the present case, given by the irreparable damage to the relationship of trust between the Claimant and the Respondent, due to the Claimant’s behaviour of disregard of the club’s instructions and of local law from the start of the contract, which rendered its continuation in good faith impossible.
22. Therefore, the Chamber concluded that, regardless of the validity or not of clauses 8.3 and 8.4 of the employment contract, the conduct of the Claimant irreparably damaged the relationship of trust between the employer and the employee and rendered the continuation of their employment contract impossible. Therefore, the Chamber reached the conclusion that the Respondent had a just cause to terminate the employment contract with the Claimant on 1 March 2016.
23. In view of the above, the Chamber concluded that the Claimant’s claim must be rejected in full.
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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.
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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