F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 20 February 2020

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 20 February 2020,

in the following composition

Clifford J. Hendel (USA), Deputy Chairman Roy Vermeer (Netherlands), member Daan de Jong (Netherlands), member

on the matter between the player,

José Ángel Alonso Martín, Spain

as Claimant

and the club,

Eastern Athletic Association FTL, Hong Kong

as Respondent

regarding a dispute arisen between the parties in connection with

an employment-related dispute

I. Facts of the case

1. On 9 August 2018, the Spanish player, José Ángel Alonso Martín (hereinafter: Claimant) concluded an employment contract (hereinafter: the contract) with the Hong Kongese club, Eastern Athletic Association FTL (hereinafter: Respondent), valid as from 1 August 2018 until 31 July 2019.

2. According to the contract, the Claimant was entitled to a monthly salary of Hong Kong Dollar (HKD) 82,053.

3. On 14 November 2018, the parties concluded an “Amendment to player’s agreement” stipulating that “the parties hereto agree that Annex 1 - Other Benefits of the Agreement shall be amended as below”:

a) “The [Respondent] shall reimburse the rentals of the accommodation in Hong Kong on actual basis, with the amount not more than HKD 20,000 every month,

b) The [Respondent] shall provide 2 sets of economy class fight tickets for the [Claimant] and his family between Spain and Hong Kong.

c) If this Agreement is extended in accordance with [I.3.d] below, all the terms remain the same of this Agreement except for basic salary will be HKD 100,287 (net).

d) At the end of this Agreement (31-07-2018), this Agreement may automatically extend for another 12 months (from 01-08-2019 to 31-07-2020) per [I.3.c] above if the [Claimant] passes the [Respondent’s] pre-season assessment by 15-07-2019.”

4. According to the Claimant, on 27 October 2018, he suffered an injury while disputing a match with the Respondent.

5. As per the Claimant, on 23 June 2019, he received a message via WhatsApp apparently sent by the Respondent, with the following contents: “I had bad news inform you that, suddenly & finally we will changed head coach. New head coach not agreed that to renew contract with you, he prefer use his player. Hope that inform you immediately, you still have time to find a club.”

6. On 27 June 2019, the Claimant sent a letter to the Respondent with the following contents: “In the […] related document, we agreed that contract will be renewed for one more season, 2019/20 if the [Claimant] passes the [Respondent’s] preseason assessment by 15/07/2019. Given the circumstances, we kindly request you to inform us what date and where should I be to make the preseason in order to follow your instructions. Waiting for your news in the next 72 hrs.”

7. On 8 July 2019, the Respondent replied to the Claimant’s letter with the following message: “We are regret to inform you that we will not extend the Player's Agreement dated 9th of August 2018 (the "Agreement") after the [Respondent’s] pre-season assessment performed by our management and coaching team. As a result, the Agreement will expire on 31st July 2019.”

8. On 29 July 2019, the Claimant contacted the Respondent via the Asociación de Futbolistas Españoles (AFE), stating the following: “During all the contract period the [Respondent] has not given the possibility to the [Claimant] of performing any pre-season assessment or evaluation so the potential option (automatic option in benefit of the [Claimant]) will never take place only due to the Eastern Athletic Association sole discretion and decision […]. In past cases related to these kind of clauses, this authoritarian way of acting followed by other Clubs has been duly sanctioned by FIFA competent bodies, so in accordance with the Rules of the Statute and Transfer of Players of FIFA, we hereby require [the Respondent], before August 4, 2019, to reach and understanding […] and to compensate him the breach of contract without just cause which has taken place.”

9. On 2 August 2019, the Respondent sent a letter to the Claimant, which included an assessment about the Claimant, summarized as follows: “The [Claimant] showed inconsistency in various areas of technical assessment made by coaching team. As a central defender of the team, the [Claimant] is required to play against opponent's import forwards who are physical strong and have excellent heading. However, the [Claimant] is not strong enough physically and the new Head Coach prefers a central defender with good heading and physically strong. Hence, coaching team does not recommend to renew the [Claimant’s] contract for Season 2019/20.”

10. On 23 October 2019, the Claimant lodged a claim before FIFA for breach of contract, and requested the payment of the following amounts:

a) HKD 1,203,444, as compensation for breach of contract without just cause, corresponding to the residual value of the contract (i.e. from 1 August 2019 until 31 July 2020);

b) HKD 100,287, for moral damages

11. The Claimant further requested the imposition of sporting sanctions against the Respondent.

12. According to the Claimant, the contract expired on 31 July 2019 and was not extended.

13. In this respect, as per the Claimant, the Respondent failed to comply with its obligation to automatically extend the contract.

14. Moreover, as to his assessment, the Claimant explained that he was injured during the relevant period, and did not have an opportunity to have a proper evaluation.

15. In particular, the Claimant explained that, following the contract, he had the right to receive an objective medical evaluation before 15 July 2019.

16. In the opinion of the Claimant, the Respondent had a “capricious” behaviour and only interpreted the contract to its sole benefit. The Claimant considered that the contract was terminated on the basis of a unilateral and subjective consideration.

17. In addition, the Claimant considered that art. 18.4 RSTP is applicable, since the Respondent decided to not extend the contract on the basis of a medical assessment.

18. Despite being invited to do so, the Respondent only provided its reply to the claim after notification of the closure of the investigation.

19. On 13 December 2019, the Claimant informed FIFA that he remained unemployed for the period of 2 April 2019 until 30 November 2019.

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 23 October 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players 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 Spanish player and a Hong Kongese club.

3. In continuation, 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 and considering that the present claim was lodged on 23 October 2019, the 2019 edition of the 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 and arguments as well as the documentation on file. 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. In this context, the Chamber noted that the Respondent only provided its reply to the claim after the notification of the closure of the investigation. The DRC referred to art. 9 par. 4 of the Procedural Rules, and determined that, by not presenting its position to the claim during the investigation phase, the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

6. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

7. In this respect, the Chamber recalled that the Claimant and the Respondent signed an employment contract which was valid as from as from 1 August 2018 until 31 July 2019. The Chamber acknowledged that, in accordance with the employment contract, the Respondent was obliged to pay to the Claimant, a monthly salary of HKD 82,053.

8. In addition, the DRC recalled that, as per the “Amendment to player’s agreement”, the employment contract “may automatically extend for another 12 months […] if the [Claimant] passes the [Respondent’s] pre-season assessment by 15-07-2019.” Moreover, the Chamber noted that pursuant to the “Amendment to player’s agreement”, the Claimant monthly salary would be HKD 100,287 “net”. Finally, the DRC took into consideration that it remained undisputed that the contract expired on 31 July 2019 and was not extended.

9. In continuation, the DRC recalled that the Claimant lodged a claim before FIFA for breach of contract, requesting the payment of the following amounts:

c) HKD 1,203,444, as compensation for breach of contract without just cause;

d) HKD 100,287, for moral damages

10. In light of the above, the Chamber established that the primary issue at stake is determining as to whether the Respondent had breached the contract by not extending it, and to determine the consequences thereof. In this respect, the Chamber deemed it essential to make a brief recollection of the facts as well as the parties’ main arguments and the documentation on file.

11. With regard to the Claimant’s arguments, the Chamber noted that, as per the Claimant, the Respondent failed to provide any reasons or justifications for not extending the contract. Consequently, the DRC educed, the Claimant concluded that the Respondent had failed to comply with its obligation to extend the contract, and that it therefore breached the contract.

12. Moreover, the Chamber referred to the Claimant’s statement that he was injured and that, consequently, he did not have an opportunity to have a proper evaluation by the coach. Furthermore, the DRC recalled that the Claimant considered that art. 18.4 RSTP is applicable, since the Respondent decided to not extend the contract on the basis of a medical assessment.

13. In order to determine whether the Respondent had breached the employment contract, the Chamber placed particular emphasis on the fact that, by only providing its reply to the claim after the notification of the closure of the investigation, the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

14. In other words, as per the DRC, the Claimant’s allegation that the employment contract was to be automatically extended after 31 July 2019, remained uncontested by the Respondent.

15. Consequently, taking into account that the Respondent only provided its reply to the claim after the notification of the closure of the investigation, as well as its well-established jurisprudence, the DRC unanimously concluded that the Respondent breached the employment contract by not extending it.

16. That said, the Chamber also concluded that the Respondent is to be held liable for the early termination of the employment contract by the Respondent and should therefore bear the consequences of its unjustified breach of the employment contract.

17. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract payable by the Respondent to the Claimant in the case at stake. In doing so, the members of the Chamber first 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.

18. 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. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

19. As a consequence, 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 DRC 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 DRC emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter.

20. In order to estimate the amount of compensation due to the Claimant in the present case, the Chamber first turned its attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract(s), which criterion was considered to be essential. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

21. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of premature termination by means the Respondent not extending the contract until the final expiry date, i.e. 31 July 2019, until 31 July 2020, and concluded that the Claimant would have received HKD 1,203,444 in total as remuneration had the contract been executed until its expiry date.

22. Consequently, the Chamber concluded that the amount of HKD 1,203,444 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

23. In continuation, the DRC acknowledged that the Claimant’s request for compensation included HKD 100,287 corresponding to “moral damages”. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered.

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 termination of contract with just cause in connection with the player’s general obligation to mitigate his damages.

25. Having said this, the DRC noted that according to the information on file, the Claimant remained unemployed for the period as from 1 August 2019.

26. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of HKD 1,203,444 to the Claimant as compensation for breach of contract.

27. 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.

28. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the club. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods.

29. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

30. Finally, the Chamber recalled that the above-mentioned sanction 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.

31. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

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Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, José Ángel Alonso Martín, is partially accepted.

2. The Respondent, Eastern Athletic Association FTL, has to pay to the Claimant, compensation for breach of contract without just cause in the amount of HKD 1,203,444.

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

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 amount mentioned under III.2.

5. The Respondent shall provide evidence of payment of the due amount in accordance with III.2. 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 amount due in accordance with III.2. is 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 III.6. will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the aforementioned sum is 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.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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.

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 & Compliance Officer