F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 15 November 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 November 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Johan van Gaalen (South Africa), member

Wouter Lambrecht (Belgium), member

Pavel Pivovarov (Russia), member

on the claim presented by the player,

Player A, from country A

as Claimant

against the club,

Club B, from country B

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 30 June 2017, the Player A, from country A (hereinafter: the player or the Claimant) entered into an employment contract (hereinafter: contract) with the Club B, from country B (hereinafter: club or Respondent) valid as from 30 June 2017 until 31 May 2019.

2. In accordance with the contract, the club undertook to pay the player the following gross amounts:

a) Season 2017/2018: EUR 684,211.49 as total salary, payable in 10 instalments between August 2017 and May 2018, due on the 5th day of the following month;

b) Season 2018/2019: EUR 682,664.99 as total salary, payable in 10 instalments between August 2018 and May 2019, due on the 5th day of the following month.

3. According to Art. 9.1 of the contract, “This contract cannot be unilaterally terminated during the course of a Season and before expiry of its term, save for the following cases:

a) By mutual agreement;

b) For “just cause” […].”

4. Art. 9.3 of the contract reads as follows: “Both parties has a right to terminate the Contract unilaterally between the dates 01 April 2018 – 15 April 2018, by giving written notice. In case of termination, the party terminates the contract has to pay 100.000 EUR compensation to other party at the date of said termination”.

5. On 13 April 2018, the club terminated the contract in writing, referring to Art. 9.3 of the contract, in accordance with which the amount of EUR 100,000 was remitted to the player.

6. On 17 April 2018, the Football Federation of country B sent a letter to the player informing him about the end of the contractual relationship between the parties and that he would not be in the squad for matches of the club anymore.

7. On 20 April 2018, the player sent a letter to the club requesting payment of his salaries for April and May 2018, which was rejected by the club in a letter dated 30 April 2018.

8. On 9 May 2018, the player reiterated his request in a letter to the club, which was rejected by the club in a letter dated 15 May 2018.

9. On 31 May 2018, the player lodged a claim in front of FIFA against the club claiming “compensation” in the amount of EUR 107,193.13, corresponding to the player’s salaries for April and May 2018. Furthermore, the player requested 5% interest p.a. as of 14 April 2018 and being reimbursed for his legal costs.

10. In his arguments, the player held that the club had no just cause to terminate the contract with immediate effect, i.e. during the sporting season.

11. In this regard, the player argued that interpreting the content of art. 9.3 in combination with art. 9.1 of the contract, leads to the conclusion, that the contract could only have been terminated by the end of the season 2017/2018 and not with immediate effect.

12. The player referred to art. 9.1 of the contract, which lists the only scenario in order to terminate a contract during the sporting season, and maintained that if the parties wanted to apply the right to terminate the contract with immediate effect, they would have mentioned it as additional option under art. 9.1 of the contract. Since this exhaustive enumeration does not contain such option, the player claimed that the contract could not be terminated with immediate effect.

13. Moreover, the player referred to art. 16 of the Regulations on the Status and Transfer of Players (hereinafter: RSTP), according to which a contract cannot be terminated during a season.

14. In this context, the player claimed the residual salaries of 17 days in April 2018, i.e. EUR 38,771.98 and the salary for May 2018, i.e. 68,421.15, as compensation.

15. In its reply, the club rejected the player’s claim.

16. The club argued that the validity of the termination of the contract as such and the predetermined compensation payment remitted in accordance with it, was accepted by the player and that he only disputed the date on which such termination took effect.

17. Furthermore, the club held that the wording of art. 9.3 of the contract is clear and provides for a possibility to terminate the contract with immediate effect. The club pointed out that the relevant clause does not refer to a termination with effect at the end of the season and that a clear clause would not need an “alternative interpretation” as provided by the player.

18. Moreover, the club brought forward that it remitted the payment of the compensation as well as the pro-rata salary for April 2018 on 13 April 2018. In this regard, the club submitted two payment receipts, i.e. one for EUR 100,000 and one for EUR 24,786.42.

19. The club maintained that if the player deemed that the termination was not yet effective in April 2018, he should have returned the amounts received.

20. In this regard, the club purported that during the contract negotiations it proposed different dates in art. 9.3 of the contract, i.e. “01 May 2018 - 15 May 2018”, but that the player’s agent changed the dates to April without giving any reason.

21. In this context, the club argued that the player failed to proof that the parties had the intention to agree on a termination taking effect only at the end of the season.

22. Regarding the player’s argumentation that art. 9.3 of the contract needs to be interpreted in combination with art. 9.1, the club claimed that art. 9.3 is a lex specialis, which allows to derogate from the general principle agreed upon in art. 9.1. The club further pointed out that art. 9.3 of the contract is underlined and bold in the contract, which points out the special character of said provision.

23. Finally, and without prejudice, the club pointed out that the player’s claim for the remaining part of the April 2018 salary was miscalculated. Taking into account the monthly net salary of EUR 57,150 and the pro-rata payment already remitted, i.e. EUR 24,786.42, the remaining net salary for April 2018 would only be EUR 32,363.58.

24. Additionally, and without prejudice, the club held that since the season 2017/2018 ended on 19 May 2018, the club would only need to pay a pro-rata salary of EUR 35,027.42 net.

25. In his replica, the player reiterated his position and rejected the club’s arguments.

26. The player held that his agent proposed the change of the dates of the art. 9.3 of the contract, as it provided more “planning security” for both parties, since a termination notified in April with effect at the end of the season would provide more time to plan the future.

27. In this regard, the player maintained that there was no other logical reason for him to change the dates if the termination was to take effect immediately, as this would entail that he would lose one more monthly salary.

28. Furthermore, the player asserted that he had no reason to accept a clause providing him with a compensation with immediate effect if the amount of compensation was lower than his salaries for April and May 2018. Even more so, since he had no chance to find a new club during the course of the season.

29. Moreover, the player asserted that the intention of the parties was to compensate the other party in case of a pre-mature termination of the contract for the additional season.

30. Finally, the player rejected the club’s argument about the miscalculation of the salaries for April and May 2018. In this regard, he insisted on the gross amounts and argued that it does not matter when the season ended, since the wording of the contract provides for ten monthly instalments between August 2017 and May 2018.

31. In its duplica, the club reiterated its position and rejected the player’s arguments.

32. The club maintained that the player’s explanation regarding the change of dates in art. 9.3 of the contract during the negotiations is not plausible and no evidence was submitted in support thereof.

33. Moreover, the club rejected the player’s argument about the amount of compensation being lower than his salaries for April and May 2018, since the player had agreed to this amount before signing the contract.

34. Finally, without prejudice, the club insisted on its calculation of the salaries for April and May 2018.

35. The player remained unemployed between 14 April 2018 and 31 July 2018.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or 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 31 May 2018. Consequently, the 2018 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 Procedural Rules).

2. Subsequently, the DRC noted that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations on the Status and Transfer of Players (edition June 2018), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country A and a club from country B.

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 June 2018), and considering that the present claim was lodged on 31 May 2018, the January 2018 edition of said regulations (hereinafter: 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 emphasized 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 30 June 2017, the player and the club had signed an employment contract, valid as of 30 June 2017 until 31 May 2019, and according to which the player inter alia, was entitled to receive a total salary of EUR 682,644.99 during the season 2017/2018, payable in 10 instalments between August 2017 and May 2018.

6. In continuation, the members of the Chamber noted that the player, in connection with the club’s termination of the contract dated 13 April 2018, lodged a claim against the club claiming “compensation” in the amount of EUR 107,193.13, corresponding to his salaries for April and May 2018, since he deemed that the relevant termination would only take effect at the end of the season.

7. Furthermore, the DRC acknowledged that the club rejected such argumentation and argued that it terminated the contract in accordance with art. 9.3 of the contract, which provided a possibility for both parties to immediately terminate the contract within the stipulated period. Further, the club held having remitted all remuneration due to the player, including the compensation the parties agreed upon beforehand.

8. On account of the above, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the Respondent terminated the employment contract on 13 April 2018 with immediate effect and in accordance with art. 9.3 of the contract.

9. In this context, 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.

10. In continuation, the DRC turned its attention to the content art. 9.3 of the contract, which is at the basis of the club’s termination of the employment relationship.

11. For the sake of good order, the Chamber wished to recall the wording of said clause, which establishes, that “Both parties has a right to terminate the Contract unilaterally between the dates 01 April 2018 – 15 April 2018, by giving written notice. In case of termination, the party terminates the contract has to pay 100.000 EUR compensation to other party at the date of said termination”.

12. In this context, the Dispute Resolution Chamber duly analysed clause 9.3 of the relevant employment contract concerning the termination of the contract. In this regard, the members of the Dispute Resolution Chamber took note that the above mentioned clause provides for the right to terminate within the stipulated period the relevant contract for both parties, the Claimant and the Respondent.

13. Furthermore, the Chamber acknowledged that the aforementioned clause grants, in case of such termination of the contract by either party, a compensation payable to the other party.

14. What is more, the DRC noted that the Claimant disputed that such clause provided the right to immediately terminate the contract, whereby the validity of the clause as such, including the pre-determined compensation, remained uncontested.

15. Further, the Chamber pointed out that it remained undisputed that Respondent terminated the contract in writing on 13 April 2018 and remitted the pre-determined compensation in the amount of EUR 100,000 to the Claimant on the same date.

16. The DRC further observed that according to the documentation on file, the dates for such a termination were changed during the negotiations of the contract in question, from May to April 2018, upon the request of the player’s agent.

17. Considering the above-mentioned considerations and in particular the wording of the relevant clause, the members of the Chamber stressed that art. 9.3 of the contract does not contain a reference for a termination taking effect only at the end of the season.

18. Bearing in mind art. 12 par. 3 of the Procedural Rules, the Chamber rejected the Claimant’s argument that the termination would only take effect at the end of the season.

19. Therefore, the members of the DRC were of the unanimous opinion, that art. 9.3 of the contract had been contractually agreed between the parties and established in consequence that the club terminated the contract with immediate effect on 13 April 2018 and acted acted in accordance with the relevant provision of the contract.

20. As a consequence, the Dispute Resolution Chamber to conclude that the claim of the Claimant has to be rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player A, is rejected.

*****

Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport (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:

Emilio García Silvero

Chief Legal & Compliance Officer

Enclosed: CAS directives