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 29 January 2020

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 January 2020,

by

Geoff Thompson (England), Chairman

Daan de Jong (The Netherlands), member

Alexandra Gomez Bruinewood (Uruguay), member

on the matter between the player,

Dragan Boskovic, Montenegro

represented by Mr Daro Busic

as Claimant

and the club,

Thai Port FC, Thailand represented by Mr Christophe Larrouilh

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 19 December 2017, the Claimant and the Respondent (hereinafter jointly referred to as: the parties) concluded an employment contract (hereinafter: the contract), valid as from 1st January 2018 until 30 December 2019.

2. According to art. 3 of the contract, the Respondent undertook to pay to the Claimant a net monthly salary of Thai Baht (THB) 1,700,000, as well as a net signing fee of THB 3,000,000 per year, THB 40,000 net for accommodation and the following bonuses based on the team’s performance:

- “5. Personal Bonus on team Performance

For League: Winner = 2,000,000 THB.

2nd = 1,000,000 THB.

3rd = 500,000 THB.

For Cup: Winner = 1,000,000 THB.

2nd = 500,000 THB.”

3. In addition to the above, the Claimant was also entitled to four business class tickets from Montenegro to Thailand during the term of the contract.

4. Pursuant to art. 6 par. 3 of the contract, the Claimant undertook to comply with the rules, regulations, orders, policies, practices and procedures of the Respondent and accepted to be subject to sanctions by the Respondent in case of breach of said provision.

5. Art. 6.4 and art. 6.7 of the contract provided that the Claimant guarantees that “he is in good health with good strength and stamina and shall maintain and keep his fitness at the level suitable to compete (…)” and “the player shall play in every Match with high performance and quality”.

6. Finally, art. 7.2 of the contract granted the Respondent the right to terminate the contract, as follows:

“The Party is in breach or in violation of any Clause under this Agreement, Port F.C. shall have the right to terminate the Agreement without any compensation and claim for any damages from the Player.”

7. On 19 July 2019, the Respondent notified the Claimant of the termination of the contract (hereinafter: the termination letter). The reasons invoked by the Respondent in the termination letter were mainly the Claimant’s poor sporting performances, his personal lifestyle contrary to art. 6.4 and art. 6.7 of the contract, his refusal to move on loan to another Thai club and his unacceptable behavior towards referees. The Respondent also mentioned that the Claimant’s high salary and status of foreign player compelled him to “a certain level of performance and a maximum level of discipline”.

8. On 30 July 2019, the Claimant granted the Respondent ten days to pay the total amount of THB 11,779,032, failing which he would submit a claim in front of FIFA.

9. In said letter, the Claimant also stated that he was one of the best scorers in the history of Thai football and that he was fully dedicated to his work and maintained a high level of performance, in particular by hiring a personal fitness coach for the season 2019. The Claimant also added that he had never received any warning or sanction from the Respondent prior to the termination letter.

10. The Claimant further held that the Respondent had no right to transfer him to another club, in particular given that the club was playing in Thai’s second division. In this regard, the Claimant stated that he had only discussed a potential transfer over the phone with the Respondent and that the latter had never presented him a written offer. Finally, the Claimant held that he was never given the opportunity of discussing directly with the other club.

11. Finally, the Claimant stated the following: “After the first half of the season you announced my client that you will not use his service in TL1 matches, but in cup games. He immediately offered to the Club the mutual termination of the agreement with only 4 salaries as severance. Club refuses his offer and he was told that he might be registered on later stage. Only two days after transfer period finished on 17th July 2019, you terminated the Contract with Mr Boskovic on 19th July 2019, leaving him without possibility of finding a new club in TL1 which we find very intentionally and severely compromised players sport chances to continue his professional career.”

12. On 31 August 2019, the Claimant lodged a claim against the Respondent in front of FIFA. On 8 November, the Claimant amended his claim, requesting the total amount of THB 13,279,032, which may be broken down as follows:

12.1. THB 449,032 corresponding to part of the salary of July 2019;

12.2. THB 8,500,000, corresponding to the residual value of the contract, i.e. until December 2019;

12.3. THB 200,000, corresponding to accommodation as per art. 3.3 of the contract;

12.4. THB 330,000, corresponding to three airfare tickets as per art. 4 of the contract;

12.5. THB 1,500,000, corresponding to bonuses as per art. 5 of the contract, following the Respondent’s performances during the 2019 season, i.e. 3rd position in final standings of the Thai League 1 and winner of the FA Cup;

12.6. THB 2,000,000, corresponding to the damage caused to the Claimant’s professional and private image;

12.7. THB 300,000, corresponding to the costs for a fitness coach and sport accessories.

13. In his claim, the Claimant simply referred to the content of his letter to the Respondent dated 30 July 2019.

14. In its reply, the Respondent first contested the admissibility of the claim, considering that FIFA is not competent.

15. According to art. 8 of the contract, “(t)his Agreement shall be construed and interpreted in accordance with and governed by the laws of Thailand the parties hereto agree to submit to the jurisdiction of the competent court in Thailand”.

16. In light of the aforementioned provision, the Respondent considered that the parties voluntarily agreed to submit disputes arising from the contract to Thai courts. This said, the Respondent added that in the event that the Dispute Resolution Chamber decided it was competent, the dispute should be decided in accordance with Thai law, in particular the Thai Labor Protection Act (hereinafter: the TLPA), rather than FIFA Regulations.

17. The Respondent argued that according to the TLPA, it was entitled to terminate the contract without any justification, and the Claimant was not entitled to a severance pay, given that the player performed his duty dishonestly, intentionally caused damage to the club and committed negligent acts. The Respondent held that even in the event where compensation would be awarded to the Claimant, he should only be entitled to a maximum of three months of salary according to the TLPA.

18. The Respondent emphasised the Claimant’s behaviour, which led to the termination of the contract. In this context, the Respondent held that the Claimant’s poor performances were necessarily due to his personal lifestyle.

19. Furthermore, by asking the Claimant to move on loan to another club, the Respondent was of the opinion that said loan should be assimilated to a “relocation” in the sense of the TLPA, i.e. a change of the Claimant’s workplace rather than a change of employer. As such, the Respondent claimed that “an employee has to accept any relocation if it is not affects his ordinary way of living” and that “by refusing it he has committed a fault equivalent to an act of insubordination that could not make it possible the pursuit of the contractual relationship”.

20. Finally, the Respondent challenged the bonuses requested by the Claimant, given that he “was no more belonging to Port FC when it reached the 3rd position of the Thai League 1 ranking and when it winned the Thai FA Cup”.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 31 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. With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the Procedural Rules states that the DRC shall examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2020). In accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations, 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 Montenegrin player and a Thai club.

3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the grounds that the contract concluded with the Claimant established the “competent court in Thailand” as the competent body to deal with the case.

4. In this regard, the Chamber deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the contract.

5. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the contract at the basis of the present dispute contained a clear and specific jurisdiction clause.

6. In this respect, the Chamber recalled that art. 8 of the contract stipulates that “(t)his Agreement shall be construed and interpreted in accordance with and governed by the laws of Thailand the parties hereto agree to submit to the jurisdiction of the competent court in Thailand”.

7. Having examined the relevant provision, the Chamber came to the unanimous conclusion that art. 8 of the contract does not constitute a clear jurisdiction clause in favour of one specific court in Thailand, since it is drafted in a generic manner and even fails to mention the relevant national court. 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.

8. Subsequently, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2020) and, on the other hand, to the fact that the present claim was lodged on 31 August 2019. The Dispute Resolution Chamber concluded that the June 2019 version of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

9. In this context, the Chamber also recalled that in accordance with art. 25 par. 6 the Regulations, the DRC shall apply the Regulations whilst also taking into account relevant arrangements, laws and collective bargaining agreement that exist at national level, as well as the specificity of sport.

10. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, it started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant and the Respondent. 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.

11. First, the Dispute Resolution Chamber noted that the parties entered into an employment contract valid as from 1st January 2018 until 30 December 2019, according to which the Respondent undertook to pay the Claimant a monthly salary of THB 1,700,000, a net signing fee of THB 3,000,000 per year, THB 40,000 net for accommodation, as well as bonuses based on the Respondent’s performances in the league and the cup.

12. Second, the Chamber noted that according to art. 6.3 of the contract, the Claimant undertook to abide by the rules and regulations of the Respondent and to accept any related sanction. Moreover, the Chamber took good note of art. 6.6 and 6.7 of the contract, according to which the Claimant undertook to remain in good health and fitness as well as to perform in games at his highest level.

13. The Chamber also observed the Respondent’s right to terminate the contract in the case of a breach of the Claimant, as set out at art. 7 of the contract.

14. In this respect, the Chamber observed that, on 19 July 2019, the Respondent unilaterally terminated the contract alleging, in particular, that the performances of the Claimant were insufficient, that his personal lifestyle was contrary to art. 6.4 and art. 6.7 of the contract, that he refused to move on loan to another Thai club and that his behavior towards referees was unacceptable.

15. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the Respondent had terminated the contract without just cause. Consequently, the Claimant requested outstanding remuneration and compensation for breach of contract in the total amount of THB 13,279,032.

16. Having established the aforementioned, the Chamber deemed that the underlying issue in the present dispute was to determine whether the contract had been unilaterally terminated with or without just cause by the Respondent on 19 July 2019 and the consequences thereof.

17. In this context, the Chamber observed that in the termination letter, the Respondent explicitly invoked the poor performances of the Claimant to justify the termination of the contract. The DRC considered that poor performance is a purely subjective appreciation, as it is left to the full discretion of the Respondent. This led the Chamber to recall the constant jurisprudence of the Dispute Resolution Chamber and of the Court of Arbitration for Sport (CAS), according to which a player’s poor performance may not constitute a valid reason to unilaterally terminate an employment contract.

18. The DRC further noted that the Respondent did not provide any tangible evidence attesting to any reprehensible conduct or breach of the contract committed by the Claimant, whether within the context of his lifestyle or his behaviour towards referees.

19. As regards the Claimant’s refusal to move to another Thai’s club on loan, the DRC recalled that pursuant to art. 25 para. 6 of the Regulations, it shall apply the Regulations in place or any national law invoked by the parties. In this context, the Chamber recalled that in accordance with fundamental principles of labour law, a club may in no event force the loan of a player to another club, without the prior consent of the player. In these circumstances, the refusal of the player to move to another club on loan, may not constitute just cause for the Respondent to terminate the contract.

20. As a general rule and notwithstanding the above, the DRC recalled that the termination of a contract should only be an ultima ratio. In the present matter, the Chamber noted that the Respondent did not alert, warn or sanction the Claimant for his poor performances or his behaviour, prior to terminating the contract.

21. In light of the above, the Dispute Resolution Chamber decided that the Respondent terminated the contract without just cause and that it should thus be held liable for the early termination of the contract.

22. First, the DRC noted that outstanding remuneration was still due to the Claimant. Given that the Respondent did not provide any tangible evidence attesting that the outstanding remuneration had been paid to the Claimant, the DRC concluded that the payment of THB 1,700,000 corresponding to the salary of July 2019 had not been made and that consequently, that amount was overdue.

23. Having established that the Respondent is to be held liable for the early termination of the contract without just cause, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract.

24. In these circumstances, 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 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 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.

25. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains 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 DRC established that no such compensation clause was included in the contract at the basis of the matter at stake.

26. 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 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.

27. 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 30 December 2019. In view of the foregoing, the DRC observed that the residual value of the contract is THB 8,500,000, corresponding to five monthly salaries of THB 1,700,000, which shall serve as the basis for the final determination of the amount of compensation for breach of contract.

28. 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 art. 17 par. 1 point ii) of the Regulations, such remuneration under a new employment contract shall be deducted from the residual value of the contract that was terminated early, in the calculation of the amount of compensation for breach of contract (“the mitigated compensation”).

29. In this respect, the Chamber noted that the Claimant had not concluded any new employment contract.

30. Having established the above, the Chamber took note of the Claimant’s request of THB 200,000, corresponding to accommodation as per art. 3.3 of the contract and of THB 330,000, corresponding to three airfare tickets as per art. 4 of the contract.

31. In relation to the airfare tickets, the DRC observed that this constituted a benefit which would have been paid by the Respondent on behalf of the Claimant for the duration of the contract. In these circumstances, the Chamber decided that the Claimant is entitled to USD 8,400, corresponding to the value of three airfare tickets from Bangkok (Thailand) to Podgorica (Montenegro) in business class (one-way ticket), based on a determined average amount.

32. In this context and upon analysis of art. 3.3 of the contract, the DRC also decided to accept the Claimant’s request for THB 200,000, corresponding to accommodation.

33. The Chamber then addressed the request of the Claimant for the payment of bonuses in the amount of THB 1,500,000. In this regard, the Chamber observed that although the Claimant did not provide any evidence attesting to the sporting results of the Respondent, the Respondent itself confirmed the latter in its reply. Considering that it is not contested that the Respondent won the National Cup and was ranked third in the League, the DRC concluded that the Claimant should be entitled to the payment of THB 1,500,000, as bonuses contractually agreed.

34. Finally, due to the absence of any contractual provision and the lack of evidence provided, the Chamber decided to reject the Claimant’s request for compensation for image and sport damages, as well as costs for a private fitness coach and sport accessories, in the total amount of THB 2,300,000.

35. Consequently, in view of all of the above, the Dispute Resolution Chamber decided that the Respondent must pay the amounts of THB 11,900,000 and USD 8,400 to the Claimant.

36. In light of the above, the DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

37. Furthermore, 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.

38. 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.

39. 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.

40. Finally, the Chamber 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.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Dragan Boskovic, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Thai Port FC, has to pay to the Claimant outstanding remuneration in the amount of THB 1,700,000.

4. The Respondent has to pay to the Claimant compensation for breach of contract in the amounts of THB 10,200,000 and USD 8,400.

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

6. 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 3. and 4. above.

7. The Respondent shall provide evidence of payment of the due amounts in accordance with points 3. and 4. 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).

8. In the event that the amounts due in accordance with points 3. and 4. 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 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).

9. The ban mentioned in point 8. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

10. 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 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