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 7 March 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 7 March 2019,

in the following composition:

Geoff Thompson (England), Chairman

Stijn Boeykens (Belgium), Member

Tomislav Kasalo (Croatia), Member

Daan de Jong (The Netherlands), Member

Elvis Chetty (Seychelles), 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 29 December 2017, the Player of Country B, Player A (hereinafter: Claimant) and the Club of Country D, Club C (hereinafter: Respondent) concluded an employment contract valid as from 29 December 2017 until 28 December 2019.

2. According to article 9 of the said contract, the Claimant was entitled to receive a monthly remuneration of 55,480.

3. According to the Claimant, he was, inter alia, also entitled to a signing-on fee of USD 60,000. In this regard, the Claimant held having only received from the Respondent the amount of USD 33,000. The Claimant further held that he was entitled to receive 1 round-trip air ticket to Capital E (Country B) per year.

4. On 5 August 2018, the Claimant asked the Respondent in writing to pay the amount of USD 27,000 corresponding to the balance of the alleged signing-on fee within 10 days.

5. On 26 August 2018, the Claimant asked the Respondent in writing to send him a “ticket” in order for him to return to Country D and he reminded the Respondent of the allegedly outstanding part of the signing-on fee.

6. On 4 September 2018, the Claimant sent another default notice to the Respondent requesting to be paid the amount of USD 5,000 corresponding to his salaries of July and August 2018 within 15 days and reminding the Respondent that it had not yet paid the amount of USD 27,000 and sent the airline ticket.

7. On 21 September 2018, as the Respondent allegedly had not fulfilled its obligations following his default notices, the Claimant terminated the employment contract in writing.

8. On 22 September 2018, the Claimant lodged a claim against the Respondent before FIFA maintaining that he had just cause to terminate the employment contract and asked to be awarded the total amount of USD 72,000, which was detailed follows:

- USD 27,000 corresponding to the balance of the alleged signing-on fee of USD 60,000;

- USD 45,000 corresponding to 18 monthly salaries of USD 2,500 each as from July 2018 until December 2019.

9. According to the Claimant, the Respondent had proposed to terminate the employment contract by mutual agreement, which he refused.

10. The Claimant argued that he had just cause to terminate the employment contract considering that the Respondent, despite having been put in default, did not pay him (i) part of the signing-on fee, (ii) two monthly salaries and (iii) did not provide him with a flight ticket to return to the Respondent.

11. The Respondent replied to the claim acknowledging having paid “regularly” the Claimant’s salaries until the end of the local season in June 2018 as well as “more than half of signing-on fee” in the amount of USD 33,000.

12. Moreover, the Respondent argued that, since the beginning of the employment relationship, the Claimant has been able to present himself and participate in only 7 matches out of the 20 played by the Respondent. In this respect, the Respondent submitted a list of the minutes played by the Claimant. In its argumentation, the Respondent also questioned the Claimant’s professionalism, as he complained about several injuries and illnesses he allegedly suffered. In this regard, the Respondent underlined that it has paid for several medical bills on behalf of the Claimant.

13. Furthermore, the Respondent pointed out that the Claimant left the club during 25 consecutive days in April 2018 without authorization and that he has been warned for his “indiscipline and poor performance” and sanctioned financially in this respect.

14. What is more, the Respondent acknowledged having offered to the Claimant to amicably terminate the employment contract, which he refused.

15. The Respondent requested that the claim be rejected in full arguing that the Claimant had acted in breach of his contractual obligations deliberately and intentionally since the beginning of the employment contract. In this regard, the Respondent submitted a payment receipt dated 5 May 2018 signed by the Claimant, in which the Claimant acknowledged having received the amount of USD 500 as monthly salary for April 2018 with the note “this serves as the final warning for your indiscipline & poor performance”.

16. In his replica, the Claimant rejected the Respondent’s argument related to his participation in matches considering that he was at the disposal of the coach.

17. In addition, the Claimant confirmed that he left Country D for Country B to undergo medical treatments and stressed that he was in fact injured and he made several medical check-ups both in Country D and Country B.

18. Furthermore, the Claimant pointed out that he did not understand the warning notice on the receipt of payment, since it was drafted in English and he underlined that the Respondent would have needed to put him in the position to present his defence.

19. The Claimant insisted on the fact that the Respondent did not react to his default notices but instead offered him to terminate the employment contract by mutual consent. The Claimant further referred to article 14bis of the Regulations on the Status and Transfer of Players related to the termination of contract with just cause for outstanding salaries.

20. In its duplica, the Respondent reiterated its previous argumentation regarding the matches in which the Claimant participated. In this regard, the Respondent stressed that the Claimant showed a lack of effort and diligence even when he was fielded. In this regard, the Respondent further stated that the medical documents it presented show that the Claimant’s alleged ailments did not exist and that, thus, he had no reason not to properly perform his duties.

21. Moreover, the Respondent rejected the Claimant’s argument related to his right of being heard for the alleged “indiscipline”, since he did not provide for the legal basis of such argument. The Respondent further rejected the Claimant’s argument relating to the English language of the relevant receipt.

22. Finally, the club considered that it could not continue the employment relationship with the player because of his “unacceptable behaviour and poor performance (…) from day one”.

23. The Claimant informed FIFA that he had not signed any new employment contract following the early termination of the contract with the Respondent.

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 22 September 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 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 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 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 June 2018), and considering that the present claim was lodged on 22 September 2018, the June 2018 edition of the said Regulations (hereinafter: 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 DRC entered into the substance of the matter. In this respect, the members of the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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. Moreover, the Chamber 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. Having established the above, the Chamber acknowledged that, on 29 December 2017, the Claimant and the Respondent concluded a contract valid as from its date of signature until 29 December 2019 and according to which the Claimant was entitled to receive a monthly salary of 55,480.

6. Furthermore, the DRC took into consideration that the Claimant alleged that he was also entitled to a signing-on fee of USD 60,000, of which he acknowledged having received USD 33,000, and to 1 round-trip air ticket to Capital E per year. In this regard, the members of the DRC observed that the contract submitted by the Claimant along with his statement of claim does not include such entitlements. However, the DRC took into account that the Respondent acknowledged that it paid USD 33,000 relating to more than half of the signing-on fee to the Claimant and that it had not denied that the Claimant was entitled to the other benefits referred to by the latter, in particular, an air ticket and a monthly salary of USD 2,500.

7. At this stage, the DRC duly noted that, according to the information available in the TMS, the Respondent uploaded another document referred to as “Football service contract Agreement” signed by both the Claimant and the Respondent on 28 December 2017 with a 2 years’ duration as from the date of signature. According to said “Football service contract Agreement”, the Claimant was entitled to (i) a yearly remuneration of USD 30,000 payable in monthly salaries of USD 2,500, (ii) a signing-on fee of USD 60,000, no due date for which was indicated, and (iii) one round-trip air ticket per year to Capital E.

8. In light of the above and the fact that from the parties’ submissions it can be concluded that both parties relied on the aforementioned “Football service contract Agreement” in their argumentation, the DRC decided to take into consideration the “Football service contract Agreement” uploaded in the TMS (hereinafter: employment contract) as the relevant employment contract for the assessment of the present matter.

9. In continuation, the Chamber observed that the Claimant requested the Respondent twice, in August 2018, in writing to pay the remainder of the signing-on fee and to send him an air ticket. In addition, the DRC took into account that, on 4 September 2018, the Claimant put the Respondent in default of payment of his salary for July and August 2018 setting a 15 days’ time limit in order for the Respondent to comply with its financial obligations. In the same correspondence, the Claimant reminded the Respondent that the remainder of the signing-on fee and the air ticket were still due.

10. In addition, the members of the Chamber took into account that the Claimant lodged a claim against the Respondent, maintaining that the Respondent had not reacted to his default notices and that he, thus, terminated the employment contract with just cause on 21 September 2018 on the basis of art. 14bis of the Regulations.

11. Subsequently, the members of the Chamber noted that the Respondent, for its part, held that it had regularly paid the Claimant’s remuneration until the end of the local season in June 2018 and that the Claimant had been absent in April 2018 without authorisation. Moreover, according to the Respondent, the Claimant had participated in a few matches only. Furthermore, the Respondent held that the Claimant had not shown effort and diligence in the execution of his obligations since the start of the employment relationship and that, thus, he had acted in breach of his contractual obligations.

12. Having established the above, the members of the Chamber took into account that the Respondent did not deny that it had not paid the Claimant’s monthly salaries of July and August 2018 and part of the signing-on fee. In addition, the Respondent did not contest that it had not provided the Claimant with an air ticket and acknowledged that it had proposed to the Claimant to terminate the contract by mutual agreement.

13. In addition, reverting to the argumentation put forward by the Respondent in its defence, the DRC highlighted that the alleged unauthorized absence of the Claimant and warning dated back to April 2018 and, thus, do not appear to be related to the period of time in which the Respondent was in default of its contractual obligations towards the Claimant, i.e. as of July 2018 with regard to the Claimant’s salaries and bearing in mind that a signing-on fee typically is paid at the beginning of the employment relationship. Consequently, the DRC considered such argument as irrelevant.

14. In addition, the members of the Chamber agreed that the Claimant’s alleged low performance or alleged non-professionalism cannot be considered valid reasons not to pay the Claimant’s salary.

15. On account of the above, the Chamber concluded that the Respondent failed to pay without valid reason the Claimant’s remuneration in the total amount of USD 32,000, consisting of USD 27,000 relating to the signing-on fee and USD 5,000 relating to the monthly salaries of July and August 2018.

16. In addition, bearing in mind the consideration under point I./6. above, the Chamber concluded that the Claimant had duly proceeded in accordance with art. 14bis par. 1 of the Regulations, which establishes that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least 15 days for the debtor club to comply with its financial obligation.

17. Therefore, on the basis of art. 14bis par. 1 of the Regulations as well the DRC’s longstanding jurisprudence, the Chamber decided that the Claimant had a just cause to terminate the employment contract on 21 September 2018.

18. Consequently, in application of the principle of pacta sunt servanda, the Chamber established that the Respondent must pay the amount of USD 32,000 to the Claimant as outstanding remuneration.

19. Moreover, the Chamber observed that, in addition to the payment of outstanding salaries, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract on the basis of the relevant employment contract.

20. In continuation, the Chamber 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 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.

21. In application of the relevant provision, the members of the Chamber held that they first of all had to clarify whether the pertinent employment contract contained a 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 established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

22. In continuation, the members of the Chamber recalled the content of art. 17 par. 1 i of the Regulations, according to which in case a player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

23. In this regard, the DRC noted that the Claimant did not sign any new 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.

24. As a result, in order to establish the compensation to be paid by the Respondent, the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract as from the moment of its early termination, i.e. as from 21 September 2018, until its regular date of expiry on 28 December 2019. The DRC pointed out that the contract would thus have run for 16 months more, during which time the Claimant would have earned the total amount of USD 40,000.

Consequently, the DRC established that the remaining value of the contract as from its early termination until its regular expiry amounts to USD 40,000.

25. In view of all of the above, the DRC decided that the Respondent must pay the amount of USD 40,000 to the Claimant as compensation for breach of contract.

26. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

27. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

28. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

29. Finally, the Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

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 outstanding remuneration in the amount of USD 32,000.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of USD 40,000.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 2. and 3. above.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due in accordance with points 2. and 3. above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

8. In the event that the aforementioned sums are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

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:

Emilio García Silvero

Chief Legal Officer

Encl: CAS directives