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 3 October 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 3 October 2018,

by Philippe Diallo (France), DRC judge,

on the claim presented by the player,

Player A, from country A

as Claimant / Counter-Respondent

against the club,

Club B, from country B

as Respondent / Counter-Claimant

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 20 August 2016, the Club B, from country B (hereinafter: Respondent / Counter-Claimant) and the Player A, from country A (hereinafter: Claimant / Counter-Respondent) signed an employment contract valid as from its date of signature until 30 May 2017 (hereinafter: contract).

2. According to article 17 of the contract, the Claimant / Counter-Respondent was entitled to receive a monthly salary of “$” 3,000 payable “at the end of every Gregorian month”.

3. Pursuant to article 20 of the contract, the Claimant / Counter-Respondent was also entitled to receive a signing-on fee of “$”10,000.

4. Article 4 of the contract establishes that “The Player shall be obliged to participate, exert his best endeavours and capabilities in all matches and training sessions in which the Club asks him to participate at the time and place so determined by the Club unless his state of health would not so permit by virtue of medical reports issued by an approved entity.”

5. In addition, article 22 of the contract provides that “The Player undertakes to accept all the sanctions imposed upon him by the Club and Association in the event of committing any of the violations provided for under the prevailing Regulations.”

6. By correspondence dated 31 January 2017, the Respondent / Counter-Claimant informed the Claimant / Counter-Respondent that it had decided to terminate the contract considering that the latter allegedly acted in violation of the contractual stipulations. In addition to the contract termination, the Respondent / Counter-Claimant informed the Claimant / Counter-Respondent that it had imposed financial sanctions on him due to (i) a late arrival at a match on 7 November 2016, (ii) 21 days of absence from the club’s trainings as from 7 December 2017 and (iii) bad behaviour during trainings and insults towards a teammate on 20 January 2017. Finally, in such letter, the Respondent / Counter-Claimant acknowledged that, after deduction of the financial sanctions, the Claimant / Counter-Respondent was entitled to receive the amount of 2,809.20.

7. On 6 January 2018, the Claimant / Counter-Respondent put the Respondent / Counter-Claimant in default of payment of the amount of USD 24,100 arguing that the latter terminated the contract without just cause.

8. On 26 January 2018 with a subsequent amendment on 2 May 2018, the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant before FIFA for breach of contract without just cause requesting the following:

a) to be awarded USD 12,087 as outstanding remuneration corresponding to (i) part of his salaries of August, September and October 2016 and (ii) the entire monthly salaries of November 2016, December 2016 and January 2017;

b) compensation for breach of contract in the amount of USD 12,000;

c) that sporting sanctions be imposed on the Respondent / Counter-Claimant.

9. In its reply to the claim, the Respondent / Counter-Claimant acknowledged that the Claimant / Counter-Respondent’s salary was payable in USD and that it still owed the Claimant / Counter-Respondent the amount of 2,809 until 31 January 2017.

10. The Respondent / Counter-Claimant stressed that it had remitted to the Claimant / Counter-Respondent the signing-on fee of USD 10,000 as well as the amount of 1,500 / USD 2,112 on 11 October 2016, 1,400 / USD 1,971 on 13 November 2016 and 1,300 / USD 1,830 on 12 December 2016.

11. In addition, the Respondent / Counter-Claimant admitted having deducted the amount of USD 5,084 from the Claimant / Counter-Respondent’s salaries due to the reasons set forth in its letter dated 31 January 2017. In this respect, the Respondent / Counter-Claimant presented undated reports from its team manager and one from its president dated 2 April 2018, which allegedly confirm that the Claimant / Counter-Respondent was late at an official match, missed several trainings and showed bad behaviour towards teammates.

12. Moreover, the Respondent / Counter-Claimant explained that the Claimant / Counter-Respondent was not physically fit to practice football since he was gaining weight and was not making any efforts to “improve his skills set”. In support of such fact, the Respondent / Counter-Claimant submitted undated reports of its team manager and the coach.

13. The Respondent / Counter-Claimant held that for these reasons it had just cause to terminate the contract.

14. In his replica, the Claimant / Counter-Respondent amended his claim relating to outstanding remuneration, which initially referred to the amount of USD 12,100, explaining that, according to the payment receipts and currency conversions presented by the Respondent / Counter-Claimant, it is undisputed that the latter still owes him outstanding salaries in the amount of USD 12,087.

15. The Claimant / Counter-Respondent held that he had always worked with consciousness and professionalism during his contract with the Respondent / Counter-Claimant. He stressed that he should have been summoned by the Respondent / Counter-Claimant in order to present his defence over its allegations on his attitude.

16. Finally, the Claimant / Counter-Respondent insisted on the fact that the Respondent / Counter-Claimant had no valid reason to terminate the contract.

17. In its rejoinder, on 27 May 2018, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent considering that it had terminated the contract with just cause and requesting compensation in the amount of USD 15,000.

18. In its counterclaim, the Respondent / Counter-Claimant considered having terminated the contract with just cause based on the Claimant / Counter-Respondent’s alleged lack of cooperation, his alleged aggressiveness towards other players, his alleged absences from trainings as well as his alleged poor performance since he did not attend the club trainings.

19. The Respondent / Counter-Claimant underlined that it had tried to find solutions in order to improve the Claimant / Counter-Respondent’s performance, but the Claimant / Counter-Respondent was not interested in remedying the situation.

20. In this regard, the Respondent / Counter-Claimant stressed that it had given the Claimant / Counter-Respondent a chance to change his attitude arguing that the termination of the contract occurred two months after his alleged bad behaviour had started.

21. In his reply to the counterclaim, the Claimant / Counter-Respondent insisted on his previous argumentation stressing that the reasons put forward by the Respondent / Counter-Claimant in its counterclaim are groundless and did not justify the termination of the contract.

22. The Claimant / Counter-Respondent informed FIFA that he had not signed any new employment contract in the period between 31 January 2017 and 30 May 2017.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 26 January 2018. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2018) he 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 DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2018), and considering that the present claim was lodged on 26 January 2018, the 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. In particular, the DRC judge 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).

5. First of all, the DRC judge acknowledged that, on 20 August 2016, the Claimant / Counter-Respondent and the Respondent / Counter-Claimant concluded an employment contract valid as from its date of signature until 30 May 2017 and according to which the Claimant / Counter-Respondent was entitled to receive, inter alia, a monthly salary of USD 3,000.

6. The DRC judge further observed that, on 31 January 2017, the Respondent / Counter-Claimant terminated the contract in writing on the basis that the Claimant / Counter-Respondent allegedly acted in violation of contractual stipulations. In such termination notice, the Respondent / Counter-Claimant also informed the Claimant / Counter-Respondent of the imposition of financial sanctions on him for several reasons.

7. In continuation, the DRC judge noted that with his claim against the Respondent / Counter-Claimant, the Claimant / Counter-Respondent seeks payment of the amount of USD 12,087 as outstanding remuneration and of USD 12,000 as compensation for breach of contract, asserting that the Respondent / Counter-Claimant terminated the employment contract on 31 January 2017 without just cause.

8. Furthermore, the DRC judge noted that, for its part, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent maintaining that it had terminated the contract with just cause and requested to be awarded payment of compensation by the Claimant / Counter-Respondent in the amount of USD 15,000.

9. Considering the diverging position of the parties, the DRC judge concluded that the underlying issue in the matter at hand was to determine as to whether the contract had been terminated by the Respondent / Counter-Claimant on 31 January 2017 with or without just cause and, subsequently, to determine the consequences thereof.

10. In continuation, the DRC judge took note that the Respondent / Counter-Claimant argued that it had just cause to terminate the contract on 31 January 2017 on the basis of the Claimant / Counter-Respondent’s alleged lack of cooperation, alleged 21 days of absence from training as from 7 December 2017 as well as his alleged bad behaviour towards team mates and poor performance.

11. The DRC judge further noted that the Claimant / Counter-Respondent, for his part, held that he had always worked with consciousness and professionalism and that he was not given the opportunity to defend himself against the allegations put forward by the Respondent / Counter-Claimant as the reason for its decision to terminate the contract and to impose a financial sanction on him.

12. Taking into consideration the documentation on file as well as 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, the DRC judge deemed that the documentation submitted by the Respondent / Counter-Claimant in respect of its allegations relating to 21 days of absence from training and bad behaviour towards teammates, which consisted of reports from its team manager and its president, could not be considered as objective and satisfactory evidence of the Claimant / Counter-Respondent’s alleged absence from training and bad attitude.

13. In this respect, the DRC judge wished to underline that, according to the Claimant / Counter-Respondent, he had not been summoned at any time by the Respondent / Counter-Claimant in order to present his defence regarding such allegations. In this respect, the DRC judge underscored that the Respondent / Counter-Claimant had not presented any evidence to the contrary. What is more, the members of the Chamber took into account that at no time had the Respondent / Counter-Claimant put the Claimant / Counter-Respondent in default of his contractual obligations prior to terminating the contract.

14. In continuation, the DRC judge reverted to the Respondent / Counter-Claimant’s argument that it terminated the employment contract invoking the Claimant / Counter-Respondent’s alleged poor performance since he allegedly had not attended several trainings.

15. In this context, the DRC judge was keen to emphasize that, in accordance with the longstanding and well-established jurisprudence of the Dispute Resolution Chamber, an unsatisfactory performance of a player does not constitute a just cause for a club to prematurely terminate the employment relationship, as this judgement is subjective and unmeasurable. Thus, due to the subjective and arbitrary nature of such ground for dismissal, the DRC judge concluded that this argument of the Respondent / Counter-Claimant in order to justify the unilateral termination of the contract could not be sustained.

16. On account of all the above, the DRC judge decided that the Respondent / Counter-Claimant terminated the contract without just cause on 31 January 2017 and that, consequently, the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contact without just cause.

17. Having established the above, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent / Counter-Claimant.

18. First of all, the DRC judge concluded that the Respondent / Counter-Claimant must fulfil its obligations as per the employment contract until its termination in accordance with the general legal principle of “pacta sunt servanda”.

19. Along these lines, the DRC judge established that, according to the employment contract, the Claimant / Counter-Respondent was entitled to receive the total amount of USD 28,000 up until 31 January 2017, date of termination of the contract, including a signing-on fee of USD 10,000.

20. In continuation, the DRC judge took note of the payment receipts presented by the Respondent / Counter-Claimant, in accordance with which, as confirmed by the Claimant / Counter-Respondent, since the beginning of the employment relationship the Respondent / Counter-Claimant has paid the total amount of USD 15,913.

21. As regards the Respondent / Counter-Claimant’s argument that the amount of USD 5,084 was to be deducted from the Claimant / Counter-Respondent’s remuneration in relation with the financial sanction that was apparently imposed on the Claimant / Counter-Respondent, the DRC judge took into account, in addition to the considerations under points II./12. and II./13. above, that such fine was apparently imposed on the latter on 31 January 2017 along with the termination of the contract. Therefore, the DRC judge decided that the Respondent / Counter-Claimant’s argument could not be upheld.

22. Consequently, the DRC judge decided that the Respondent / Counter-Claimant is liable to pay to the Claimant / Counter-Respondent outstanding remuneration in the amount of USD 12,087.

23. In continuation, taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant / Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant compensation for breach of contract.

24. In this context, the DRC judge 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.

25. In application of the relevant provision, the DRC judge held that he 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

26. Subsequently, and in order to establish the compensation to be paid by the Respondent / Counter-Claimant, the DRC judge took into account the remuneration due to the Claimant / Counter-Respondent in accordance with the employment contract for the time remaining on the same contract, along with the professional situation of the Claimant / Counter-Respondent after the early termination occurred. In this respect, the DRC judge pointed out that the contract would run for another four months, i.e. until 30 May 2017, in which the total amount of USD 12,000 was to be paid by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent. Consequently, the DRC judge concluded that the remaining value of the contract as from its early termination by the Respondent / Counter-Claimant until its regular expiry amounts to USD 12,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

27. In continuation, the DRC judge remarked that following the early termination of the employment contract at the basis of the present dispute, the Claimant / Counter-Respondent did not sign a new professional contract during the relevant period of time, which circumstance appears to be in line with the information available in the TMS, and was therefore not able to mitigate his damages.

28. In view of all of the above, the DRC judge decided that the Respondent / Counter-Claimant must pay the amount of USD 12,000 to the Claimant / Counter-Respondent as compensation for breach of contract without just cause.

III. Decision of the DRC judge

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

2. The counterclaim of the Respondent / Counter-Claimant, Club B, is rejected.

3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent outstanding remuneration in the amount of USD 12,087, within 30 days as from the date of notification of this decision.

4. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent compensation for breach of contract in the amount of USD 12,000, within 30 days as from the date of notification of this decision.

5. In the event that aforementioned 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.

6. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant immediately and directly of the account number to which the remittances are to be made and to notify the DRC judge 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 DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives