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 21 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 21 February 2020,

in the following composition:

Clifford Hendel (USA), Deputy Chairman

Pavel Pivovarov (Russia), member

Tomislav Kasalo (Croatia), member

on the claim presented by the player,

Lionel Enguene Onana, Cameroon

represented by Mr Sergio A. Sánchez Fernández and Ms Tayba Jawad

as Claimant

and the club,

Kazma Sport Club, Kuwait

represented by Messrs Marcio Jones Suttile, Josiel Vaciski Barbosa, Gilson Vaciski Barbosa, Leonardo Moreira and Pedro Henrique Pontarolo

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 23 March 2019, the Kuwaiti club, Kazma Sport Club (hereinafter: the Respondent) and the Cameroonian player, Mr Lionel Enguene Onana (hereinafter: the Claimant) signed a document with the subject “Proposal in signing a contract” (hereinafter: the proposal).

2. The proposal read as follows: “(…) we are pleased to inform you that Kazma SC is interested in signing a contract for the season 2019-2020 to join our first football team as a professional player (…)”.

3. Moreover, the proposal provided for the following duration and financial terms and conditions:

“1- Terms of the contract are 10 months starting from 1st of August 2019 until 31 may 2020.

2- Total amount of the contract is $150.000 (one hundred thousand USD) net.

3- Monthly salary of $15.000 (fifteen thousand USD)

4- Accommodation fully furnished apartment.

5- Private car chosen by the club.

6- Round-trip tickets to home country for yourself only.”

4. Finally, the proposal stipulated that “we are looking forward to receiving your positive response to proceed further, knowing that this offer is valid for 48”.

5. On 22 July 2019, the Claimant arrived in Kuwait. On the same day, the Respondent posted a picture and a message on Twitter, announcing the Claimant’s arrival at the airport.

6. On 4 August 2019, the Respondent informed the Claimant that it did not wish to continue working with him.

7. By means of a letter dated 4 August 2019, the Claimant informed the Respondent that if he did not receive any written clarification pertaining to his situation at the club in the next few hours, he would consider that the Respondent terminated the contract without just cause during the protected period.

8. On 5 August 2019, the Claimant reiterated his position, asking the Respondent for a written clarification of his situation. Moreover, the Claimant indicated that “the actuation of the Club has to be considered as a unjust termination of the employment contract signed, and that, as a consequence, if the player is not immediately readmitted on the first team, and he is evicted tomorrow from his flat, which, according the contract signed has to be paid by the Club, we will understand that the employment contract is terminated (…)”.

9. By means of another letter dated 6 August 2019, the Claimant reiterated once again his position and informed the Respondent that he would submit a claim before FIFA.

10. On 15 August 2019, the Claimant lodged a claim against the Respondent in front of FIFA.

11. In his claim, the Claimant affirmed that the proposal was concluded during a meeting held on 23 March 2019 with the Respondent. According to the Claimant, the proposal contains all the essential elements of a contract and is therefore binding upon him and the Respondent. Trusting that a valid contract had been concluded, the Claimant explained that he refused offers from other clubs abroad.

12. The Claimant further held to have trained with the Respondent between 24 July and 4 August 2019. However, the Claimant explained that on 4 August 2019, the Respondent informed him that his performances were below the hopes and standards of the Respondent, and that it would put an end to their relationship.

13. Moreover, the Claimant stated that the Respondent further informed him that he had to leave Kuwait immediately, otherwise he would encounter problems with immigration authorities as he did not have any employment contract in the country. In this regard, the Claimant held that the Respondent provided him with a flight ticket for 5 August 2019, from Kuwait to Istanbul.

14. According to the Claimant, he asked the Respondent on 4 August 2019 for a written confirmation of the above, to no avail, the Respondent arguing that there was no contract.

15. Finally, the Claimant stated that the Respondent informed him on 5 August 2019 that he would be evicted from his apartment on the next day if he refused to leave immediately, that he could no longer train with the first team and that he would encounter serious problems if he refused to comply.

16. In light of the foregoing, the Claimant considered that the Respondent did not value him as an asset and that the Respondent terminated the employment contract without just cause.

17. Consequently, the Claimant requested the total amount of USD 215,000, plus 5% interest p.a. as from 4 August 2019, corresponding to:

 USD 150,000 as compensation for breach of contract;

 USD 15,000 as the expenses provided in the contract, i.e. car, accommodation, flights;

 USD 50,000 as additional compensation given the circumstances of the case.

18. The Claimant also requested the imposition of sporting sanctions on the Respondent and that his legal costs in the amount of EUR 5,000 and the costs of the proceedings be borne by the Respondent.

19. In its reply to the claim, the Respondent strongly contested the existence of an employment contract with the Claimant. In continuation, the Respondent considered that the Dispute Resolution Chamber was not competent to deal with the present matter, considering that there is no employment contract between the parties, that no ITC was issued and that no working permit was delivered by the authorities to the Claimant.

20. In this regard, the Respondent stated that negotiations were held with the Claimant but that the proposal was a mere offer which did not constitute a valid and binding contract.

21. The Respondent further explained that the Claimant was one of the players who were performing sporting tests with the Respondent and that the latter was to decide if contracts would be offered to said players. As evidence, the Respondent provided a document dated 24 July 2019 whereby the head coach indicated that certain players, including the Claimant, were performing tests with the Respondent. The Respondent however explained that upon completion of said tests, it concluded that it would not keep the Claimant for the upcoming season. In this regard, the Respondent confirmed that it informed the Claimant on 4 August 2019 that it would not hire him.

22. Moreover, the Respondent argued that the fact that the Claimant’s arrival in Kuwait was announced on social medias does not constitute proof that an employment contract was concluded.

23. Finally, the Respondent contested the Claimant’s request for compensation, arguing that the Claimant had not suffered any damages given that he was free to negotiate with other clubs.

24. After being requested, the Claimant informed FIFA that he concluded an employment contract with the Georgian club, LLC Football Club Telavi, valid as from 25 October until 31 December 2019, pursuant to which he was entitled to a monthly remuneration of USD 1,000. According to the Claimant, he received a total amount of USD 3,000 over the term of the contract and remained unemployed thereafter.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was first submitted to FIFA on 15 August 2019. 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 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 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2020), the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Cameroonian player and a Kuwaiti club.

3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the grounds that no valid and binding employment contract had been concluded with the Claimant.

4. In this respect, the Chamber was eager to emphasise that the issue of the admissibility of the claim was inherently linked to the substance of the matter, which is to determine whether the proposal signed between the Claimant and the Respondent constitutes a valid and binding employment contract. In such context, the Chamber considered that it would decide on both the admissibility and the substance of the present matter simultaneously.

5. In continuation, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2020) and considering that the present matter was submitted to FIFA on 15 August 2019, the June 2019 edition of said Regulations is applicable to the present matter as to the substance.

6. With the above having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. 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.

7. In this respect, the Chamber firstly acknowledged that it was undisputed that the Claimant and the Respondent had signed the proposal.

8. However, when summarising the parties’ respective positions in this dispute, the members of the Chamber noted that the Claimant, on the one hand, claimed that the proposal constituted a valid and binding employment contract and that the Respondent terminated said contract on 4 August 2019 without just cause.

9. Equally, the members of the Chamber took note of the reply of the Respondent, which, on the other hand, held that the proposal was a mere offer which did not constitute a valid and binding contract.

10. In view of the foregoing, the Chamber established that the first issue to be analysed in the present case is whether the proposal concluded between the parties constitutes a legally valid and binding employment contract or not.

11. With this in mind, the Chamber wished to highlight that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract, their role, the duration of the employment relationship, the remuneration.

12. Having said this, the members of the Chamber thoroughly analysed the proposal submitted by the Claimant and observed that it includes the name and role of the parties, a set term of 10 months, i.e. as from 1 August 2019 until 31 May 2020, a remuneration of USD 150,000 to be paid in 10 monthly instalments as well as other benefits such as a car, accommodation, flights, and finally the signature of both the Claimant and the Respondent. In this regard, the Chamber highlighted that the proposal establishes that the Claimant has to render his services towards the Respondent, which in counterpart has to pay to the Claimant a monthly remuneration. Furthermore, the Chamber observed that the proposal contained the signature of the Respondent in the person of its General Secretary and an official stamp of Kazma Sport Club.

13. In this context, the Chamber concluded that all such essential elements are included in the proposal.

14. The Chamber then focused its attention on whether explicit disclaimers or specific wording had been used by the parties, in order to ensure that the proposal shall not be viewed as a valid and binding contract. However, the Chamber noted that the proposal did not contain any such wording. On the contrary, the proposal contains the sentence “we are looking forward to receiving your positive response to proceed further, knowing that this offer is valid for 48”.

15. Bearing in mind the above, the Chamber further analysed whether other elements surrounding the matter may be taken into consideration. In this context, the Chamber noted that the Claimant arrived in Kuwait on 22 July 2019 and was welcomed by the Respondent, which posted a picture with a message on Twitter announcing the arrival of the Claimant at the airport. In this regard, the Chamber referred to the Respondent’s position and acknowledged that this public announcement on social medias could not, per se, constitute evidence that an employment contract had been concluded, but the Chamber was eager to emphasise that this official announcement tended to demonstrate that a formal employment relationship existed between the parties.

16. Furthermore, the Chamber noted that the Claimant submitted a copy of the website Transfermarkt, which indicated that the Claimant had been registered with the Respondent as from 24 July 2019.

17. Consequently, in view of all the above, the Chamber came to the conclusion that the proposal constitutes a valid and binding employment contract between the parties.

18. Having established that a valid and binding employment contract existed between the parties, the Chamber considered that it should, at this stage, analyse whether said contract contained a clear and specific jurisdiction clause, in order to determine if it was competent to hear the present matter.

19. Upon examination of the proposal, the Chamber concluded that it did not contain any jurisdiction clause. In this context, the Chamber understood that the parties actually never clearly and undisputedly agreed upon a specific jurisdiction. Consequently, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

20. With the above in mind, the Chamber observed that it was undisputed by the parties that the Respondent informed the Claimant on 4 August 2019 that it no longer wished to work with him. In this regard, the Chamber recalled the Claimant’s position that the Respondent terminated the employment contract without just cause.

21. In view of the foregoing, the Chamber considered that the second issue to be analysed in the present matter is whether the employment contract was terminated with or without just cause by the Respondent on 4 August 2019. Subsequently, the Chamber shall establish the financial and/or sporting consequences to be borne by the party found to be in breach of contract.

22. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

23. Furthermore, the members of the Chamber deemed it appropriate to recall the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

24. In this context, the Chamber observed that the Claimant argued that the Respondent terminated the employment contract based on his performance, which was below the hopes and standards of the Respondent. Although this has not been confirmed by the Respondent, the DRC deemed important to recall that poor performance is a purely subjective appreciation, as it is left to the full discretion of the club and that constant jurisprudence of the Dispute Resolution Chamber and of the Court of Arbitration for Sport (CAS) confirmed that a player’s poor performance may not constitute a valid reason to unilaterally terminate an employment contract. This being said, the Chamber underlined that it could not be ascertained that poor performance was the reason for the premature termination of the employment relationship in the present matter.

25. The Chamber then thoroughly analysed, on the other hand, the position of the Respondent, which considered that it simply informed the Claimant on 4 August 2019 that it would not hire him. Trusting that it was not bound by any valid employment contract, the Respondent deemed the termination impossible.

26. However, as established above, the Chamber concluded that the parties were in fact bound by a valid employment contract. Therefore, the Chamber concluded that it is not possible to follow the argumentation of the Respondent. In addition, the DRC noted that the Respondent did not provide any tangible evidence attesting to any reprehensible conduct or breach of the contract committed by the Claimant, which could justify the termination of the contract.

27. Consequently, the Chamber was of the opinion that the objective circumstances at the time did not provide the Respondent with just cause to terminate the employment contract. In light of all of the foregoing considerations, the DRC came to the conclusion that the Respondent had terminated the contract on 4 August 2019, without just cause, and that it should thus be held liable for the early termination of the contract.

28. Having established that the Respondent is to be held liable for the early termination of the employment contract, the Chamber focused its attention on the consequence of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract.

29. First of all, the Chamber reverted to the Claimant’s claim in which he requested the total amount of USD 215,000 as compensation for breach of contract, expenses as per the employment contract and additional compensation. In particular, the Chamber noted that the Claimant did not request any outstanding remuneration.

30. 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 player 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.

31. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent 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 the contract did not contain such a provision.

32. 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.

33. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the contract until 31 May 2020. Consequently, the Chamber concluded that the amount of USD 150,000 (i.e. the entire value of the contract corresponding to monthly salaries as from August 2019 until May 2020) serve as basis for the determination of the amount of compensation for breach of contract.

34. 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.

35. In this context, the Chamber noted that the Claimant had signed an employment contract with the Georgian club, LLC Football Club Telavi, valid as from 25 October until 31 December 2019, by means of which he was entitled to a monthly remuneration of USD 1,000. In this regard, the Chamber noted that the Claimant confirmed having received a total amount of USD 3,000 over the term of the contract and remained unemployed thereafter.

36. The DRC thus noted that for the overlapping period, the Claimant had been able to mitigate his damages in the amount of USD 3,000.

37. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the mitigated compensation due to the Claimant was USD 147,000.

38. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the total amount of compensation, i.e. USD 147,000, as of 15 August 2019 until the date of effective payment.

39. Having established the above, the Chamber then addressed the request of the Claimant for the payment of benefits in the amount of USD 15,000. In this regard, the Chamber noted that the employment contract set out benefits to be provided by the Respondent, as follows:

“4- Accommodation fully furnished apartment.

5- Private car chosen by the club.

6- Round-trip tickets to home country for yourself only.”

40. In the absence of any monetary value in the contractual condition relating to an apartment, a car and round-trip tickets and of any documentary evidence in this connection (cf. art. 12 par. 3 of the Procedural Rules), the Chamber had to reject the Claimant’s claim amounting to USD 15,000 relating to said benefits.

41. Finally, the members of the Chamber addressed the Claimant’s request for the payment of an additional compensation in the amount of USD 50,000. In this regard, the Chamber deemed it appropriate to point out that the request for said additional compensation had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered.

42. Furthermore, the DRC 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.

43. In this regard, the DRC 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.

44. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount 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.

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

46. 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, Lionel Enguene Onana, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Kazma Sport Club, has to pay to the Claimant compensation for breach of contract in the amount of USD 147,000, plus 5% interest p.a., as from 15 August 2019 until the date of effective payment.

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

5. 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 point 3. above.

6. The Respondent shall provide evidence of payment of the due amount in accordance with point 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).

7. In the event that the amount due in accordance with point 3. above 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 amount is 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).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

9. 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.

*****

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 relating to the appeal procedure:

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. 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