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 31 August 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 31 August 2017,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Takuya Yamazaki (Japan), member

Wouter Lambrecht (Belgium), member

Todd Durbin (USA), 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 9 July 2015, the Player of Country B, Player A (hereinafter: Claimant) and the Club of Country D, Club C (hereinafter: Respondent) signed an employment contract valid as from its signature date until 30 June 2017 (hereinafter: contract).

2. According to art. III./1. of the contract, the Respondent undertook to pay the Claimant a monthly salary of 1,612,324.

3. According to art. IV./2./a.) of the contract, the Claimant is, inter alia, “obliged to take part in all practices set up by the [Respondent], also in qualification trainings, training camps (…) meetings, (…), as well as in the travel arrangements made by the [Respondent] in Country D or abroad, and to cooperate with his activities to the [Respondent]’s coaching”.

4. Additionally, and based on art. IV./2./b.) of the contract, the Claimant is “obliged to submit himself under control to all the trainings and other activities-individual or in group-organized and specified by [the Respondent].”

5. For its part, pursuant to art. IV./5./a.) and e.) of the contract, respectively, the Respondent is “obliged to grant the running of this contract to [the Claimant] as well as his achievements by means of technical, personal or material service” and “support the technical activities and professional development of [the Claimant].”

6. Furthermore, according to IV./6./a.) of the contract, the Respondent is “entitled to grant playing rights to [the Claimant] during the existence of this contract and to cover them and not to use them as an offsetting of his temporal (lending) development, neither for a definitive transfer or a temporary transfer to a team, elected by him.”

7. On 26 January 2016, the Claimant sent a correspondence to the Respondent, in which he raised that, on 25 January 2016, and without further explanations, the Respondent’s coach informed him that the Respondent did not want to make use of his services any longer. In addition, he stressed that he was asked to accept an immediate mutual termination of the contract against payment of his salary for January 2016, which he rejected.

8. In his correspondence, the Claimant further pointed out that although he joined the Respondent’s gathering scheduled on 26 January 2016, the Respondent did not allow him to join the Respondent’s pre-season camp in Country E. Finally, the Claimant stressed that he deemed the Respondent’s behaviour unjustified and illegal as it violated his rights and duty to perform the contract. In this respect, the Claimant requested the Respondent to provide him with a flight ticket for City F (Country E) as soon as possible or that the Respondent contact his lawyer “to reach an eventual agreement.”

9. By correspondence dated 28 January 2016 addressed to the Respondent, the Claimant reiterated the contents of his first correspondence, adding that he had been training alone for three days.

10. On 1 February 2016, the Claimant contacted the Respondent once more to reiterate the contents of his first two correspondences and he added that should the Respondent persist in its behaviour, he would terminate the contract and lodge a claim against it before FIFA.

11. On 4 February 2016, the Claimant sent a “final notice before termination of employment contract” to the Respondent, in which he stressed that given that the Respondent had suspended him for ten days, he understood that the Respondent was no longer interested in his services, but that its offer to mutually terminate the contract against the payment of one monthly salary and additional payments for him through his lawyer to avoid taxes was unacceptable. In this notice, the Claimant put the Respondent in default and asked to be reintegrated in the first team and to “provide him work for which he is qualified for, i.e. professional football player” by 7 February 2016 or he would terminate the contract.

12. On 6 February 2016, the Claimant wrote to the Respondent to reject its offer to proceed to the mutual termination of the contract against the eventual payment of “only 2 or 3 monthly salaries in cash” and maintained his aforementioned request. The Claimant also pointed out in said letter that he had been training alone for 12 days.

13. On 8 February 2016, the Claimant terminated the contract in writing “for just cause” with immediate effect outlining that due to the Respondent’s absence of reaction to his requests to be reintegrated, his unjustified/illegal exclusion from the team during its decisive pre-season preparation, and the Respondent’s interest in recruiting another player for his position, he had lost confidence that the Respondent would resume performing its obligations towards him.

14. On 19 February 2016, the Claimant lodged a claim against the Respondent before FIFA and presented the following requests:

 that the Respondent be ordered to pay him compensation for breach of contract in the amount of EUR 88,368.21, which corresponds to 17 instalments of EUR 5,198.31, in accordance with the conversion of the monthly salary presented by the Claimant;

 that interest of 5% p.a. be applied on the aforementioned sum, calculated as from 8 February 2016 and not only as from the date of the claim at hand;

 that sporting sanctions be imposed on the Respondent.

15. According to the Claimant, although the Respondent never raised any issue regarding his services, it decided that it no longer needed his services and cast him out of a decisive phase of the team’s development, i.e. its pre-season preparation, without having ever explained the reasons for doing so.

16. In the Claimant’s opinion, these decisions of the Respondent are not only unjustified but also illegal in the sense that pursuant to the contract and to jurisprudence, it is clear that “the employer has to provide [its] employees with the activity they are employed for and for which they are qualified and thus cannot employ them at a different or less interesting position than the one they have been employed for” or that “among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches.”

17. Moreover, the Claimant highlighted having immediately reacted, opposing in writing his exclusion from the training camp and requesting on various occasions to be reinstated to the team.

18. In addition, the Claimant stressed that he was left to train alone without support of the Respondent and that on various occasions the Respondent’s training field was locked, submitting pictures in this respect.

19. Therefore, the Claimant held having terminated the contract on 8 February 2016 with just cause and that, thus, he is entitled to receive compensation from the Respondent.

20. In its reply, the Respondent rejected the Claimant’s claim and explained that, since it was the Claimant who did not comply with his contractual obligations, the Respondent decided to terminate the contract, with immediate effect, on 8 February 2016, providing a copy of its termination notice dated 8 February 2016.

21. In this respect, the Respondent explained that before having unsuccessfully tried to notify the termination notice to the Claimant by post, it had made efforts to notify him personally, but the Claimant did not allow the Respondent’s representative to enter his flat. In such context, the Respondent deemed that based on legal provisions, said termination is not yet deemed to have been indeed notified to the Claimant.

22. According to the Respondent, on 25 January 2016, its head coach informed the Claimant that he had to come to the Respondent’s premises on 26 January 2016 to receive training-related instructions from a second coach and that the latter would supervise him during the performance of his training program. Accordingly, the Claimant would train with the reserve team until further notice, but under the same conditions, including financial conditions. The Respondent affirmed that the Claimant did not appear for training and did not perform any work as from that date.

23. In this respect, the Respondent presented statements issued by the second coach and by a member of the Respondent’s board, who confirm that the Claimant received the aforementioned instructions. According to the second coach, the Claimant, “did not turn up for work on 26. January 2016. Nor after that, and did not make contact with me” as well as that he “could not tell him the training plan in person”.

24. In the Respondent’s opinion, it is clear that by acting this way, the Claimant committed “the most serious disciplinary misdemeanour possible.”

25. For these reasons, the Respondent considered that the continuation of the contractual relationship with the Claimant was impossible and it decided to terminate the contract due to the Claimant’s severe breach of a contractual material duty.

26. On the other hand, the Respondent stressed that it replied to the Claimant on 9 February 2016 to inform him that the Respondent was not accepting his unilateral termination of contract and that it was the Respondent who terminated the contract.

27. In this respect, the Respondent held that the Claimant’s termination of contract is unjustified, since it is neither stipulated in the contract that the Claimant would only play for the first team, nor that the Claimant had a guaranteed right to participate in the Respondent’s pre-season camps. According to the Respondent, the Claimant has always been employed as a professional football player and been treated accordingly, be it in relation to work conditions or in connection with the payment of his remuneration.

28. In this regard, the Respondent further held that if the Claimant was unhappy with the situation, he should have sought legal redress, but not have refused to come to work.

29. In addition, the Respondent specified that the gate in front of which the Claimant took photographs always remains locked during winter and that the entrance to the stadium is 50 meters away. In this respect, the Respondent deemed that the Claimant perfectly knew where the trainings of the second team were taking place as well as that in case he had doubts, he could have asked the Respondent’s staff and that, furthermore, all the details related to training sessions were also available on internet.

30. On 1 July 2016, the Claimant and the Club of Country B, Club G signed an employment contract valid as from its signature date until 30 June 2017, which was mutually terminated on 7 February 2017, in accordance with which the player was to receive a monthly remuneration of 1,000.

31. Subsequently, on 30 March 2017, the Claimant and the Club of Country B, Club H signed an employment contract for two months, i.e. until 5 June 2017, in accordance with which the player was entitled to receive a monthly remuneration of 600.

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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 19 February 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. art. 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 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 (edition 2016), and considering that the present claim was lodged on 19 February 2016, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. 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.

5. Having established the above, the Chamber acknowledged that the parties signed an employment contract valid as from 9 July 2015 until 30 June 2017.

6. In continuation, the DRC took note that the Claimant terminated the contract in writing on 8 February 2016, invoking just cause due to, inter alia, his alleged unjustified exclusion from the first team.

7. In this regard, the Claimant held that the Respondent’s coach tried to terminate the contract on 25 January 2016, proposing a mutual termination of the contract. Moreover, the Claimant held having been excluded from the Respondent’s pre-season training camp as from that date and that he had to train alone. The Chamber further noted that, according to the Claimant, in spite of several notices, the Respondent only reacted to offer again a mutual termination of the contract.

8. Subsequently, the DRC took note that the Respondent, for its part, held that the Claimant had no just cause to terminate the contract and that the Claimant had not complied with his contractual obligations. In this respect, the Respondent highlighted that the Claimant was absent from trainings as of 26 January 2016. The members of the Chamber further took note of the Respondent’s argument that, considering that the contract does not establish that the Claimant would only play with the first team of the Respondent or that he had the right to attend the pre-season training camp, the Claimant’s claim has no contractual basis.

9. Considering the conflicting position of the parties, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine as to whether or not the employment contract had been terminated by the Claimant with just cause and to decide on the consequences thereof.

10. Subsequently, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

11. Having said that, the members of the DRC took into account that the Claimant put the Respondent in default on several occasions during the period of time between 26 January 2016 and 6 February 2016, in particular requesting to be reintegrated in the team and rejecting the Respondent’s offer to mutually terminate the contract. In this context, the DRC noted that the Respondent had not contested receipt of the aforementioned notices sent by the Claimant to the Respondent between 26 January 2016 and 6 February 2016.

12. Furthemore, the members of the DRC emphasised that the Respondent’s first and only reaction to the Claimant’s notices appears to be an offer, apparently made between 4 and 6 February 2016, to terminate the contract by mutual consent, which was rejected by the Claimant.

13. On account of the above and the documentation on file, the members of the Chamber took into consideration that by the time the Claimant terminated the contract, the Respondent had not replied to the Claimant’s allegations contained in the various default notices of the Claimant.

14. Having established the above, the members of the Chamber turned their attention to the allegation of the Respondent that the Claimant was absent from training as of 26 January 2016 and that, therefore, he had not complied with his contractual obligations. According to the Respondent, for this reason it issued a notice of termination of the contract to the Claimant dated 8 February 2016.

15. In this regard, the DRC took into account that, apart from not reacting to the Claimant’s default notices, the Respondent had not put the Claimant in default of attending training. Furthermore, the Chamber noted that the only documentation provided by the Respondent in respect of the alleged absence of the Claimant from training were statements issued by the coach and a director of the Respondent, which cannot be considered as impartial and convincing evidence. As a result, the DRC concluded that said statements cannot be taken into account.

16. On account of the above, in particular taking into account that the Respondent never put the Claimant in default of any contractual obligation, that the Respondent’s sole and first reaction to the Claimant’s default notices was to offer him a mutual termination of the contract, the members of the Chamber agreed that the Respondent clearly was no longer interested in maintaining the Claimant’s services.

17. As a consequence of all the above considerations, the Chamber decided that the Claimant had a just cause to terminate the contract on 8 February 2016 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

18. Having established the above, the Chamber focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation for breach of contract from the Respondent.

19. In continuation, 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 as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. The members of the Chamber assured themselves that no such compensation clause was included in the employment contract at the basis of the matter at stake.

21. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant 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. In this regard, the Dispute Resolution Chamber emphasized beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter.

22. In order to determine the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation.

23. In accordance with the contract signed by and between the Claimant and the Respondent, which was to run for seventeen months more, i.e. until 30 June 2017, after the termination occurred, the Claimant was to receive the total amount of 27,409,508, corresponding to his salaries from February 2016 until June 2017, which serves as the basis for the final determination of the amount of compensation for breach of contract.

24. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

25. In this respect, the Chamber took note of the fact that the Claimant signed a new employment contract with the Club of Country B, Club G, valid as from 1 July 2016 until 30 June 2017. In accordance with the pertinent employment contract, the Claimant was entitled to receive a monthly remuneration in the amount of 1,000. The Chamber further noted that the contract with Club G was terminated by mutual consent on 7 February 2017. In continuation, the Chamber took into account that the Claimant signed an employment contract with another Club of Country B, Club H, valid from 30 March 2017 until 5 June 2017, according to which the Claimant was entitled to a monthly remuneration of 600.

26. In this context, the members of the Chamber deemed it important to point out that by voluntarily agreeing to the early termination of his new employment contract with Club G in February 2017, the Claimant had actually freely renounced to receive the higher income relating to the period of time between 7 February 2017 and 30 June 2017 under the contract with Club G. Consequently, the Chamber concurred that the full amount 12,000 under the employment contract of the Claimant with Club G for the period between 1 July 2016 and 30 June 2017 must be taken into consideration bearing in mind the obligation to mitigate damages when determining the amount of compensation for breach of contract in the case at hand.

27. Taking into account all the aforementioned objective elements as well as the specificities in the matter at hand and the general obligation of the Claimant to mitigate his damage, the Dispute Resolution Chamber decided that the Respondent must pay the amount of 25,500,000 to the Claimant as compensation for breach of contract in the case at hand.

28. In addition, as regards the Claimant’s request to be awarded interest on the amount of compensation, in accordance with its constant practice, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of 25,500,000 as of the date of receipt of the claim, i.e. 19 February 2016.

29. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club C, 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 25,500,000 plus 5% interest p.a. as from 19 February 2016 until the date of effective payment.

3. In the event that the amount due to the Claimant is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent 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.

*****

Note relating to the motivated decision (legal remedy):

According to article 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