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 claim presented by the club,

Sporting Clube de Portugal, Portugal,

represented by Messrs Juan de Dios Crespo, José Carlos Oliveira & Alfonso León Lleó

as Claimant / Counter-Respondent

against the player,

Ruben Tiago Rodrigues Ribeiro, Portugal,

represented by Messrs Rebelo and Macedo

as Respondent I / Counter-Claimant

and against the club,

Al Ain FC, UAE,

represented by Mr Nezar Ahmed

as Respondent II

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 27 December 2017, the Portuguese player, Ruben Tiago Rodrigues Ribeiro (hereinafter: the player or the Respondent / Counter-Claimant) and the Portuguese club, Sporting Clube de Portugal (hereinafter: Sporting CP or the Claimant / Counter-Respondent), signed an employment contract (hereinafter: the contract) valid as from 11 January 2018 until 30 June 2020.

2. According to the contract, the player was entitled to the following fixed remuneration:

(a) Signing-on fee of EUR 250,000 payable in 2 instalments of EUR 125,000 each, on 28 February 2018 and 11 September 2018 respectively;

(b) For season 2017/18: EUR 504,000 payable in 6 instalments of EUR 84,000 each, as from 11 February 2018 for the month of January 2018;

(c) For seasons 2018/19 and 2019/20: EUR 1,008,000 per season, payable in 12 instalments of EUR 84,000 each, as from 11 August of 2018 and 2019, respectively, for the preceding month.

3. According to art. 10 of the contract, he player has the right to terminate the contract unilaterally under the following conditions:

(a) The termination occurs during the period from 1 June and 1 July of each sports season, with Sporting CP to be notified 15 days in advance ofthe date when the termination shall become effective;

(b) Together with such notification an immediate payment of EUR 60,000,000 is made to the club;

(c) Once the conditions under a. and b. are fulfilled, Sporting CP undertakes to release the player and authorise the Portuguese FA to forward the ITC upon request.

4. Art. 11 of the contract stipulates that “The Parties agree to confer exclusive and final competence to settle any dispute arising out of this Contract or related with same to the Tribunal Arbitral do Desporto (TAD)”.

5. In addition, according to art. 12 of the contract, in the event that a party terminates the contract without just cause, the counterparty shall be compensated for damages caused as follows:

(a) If Sporting CP terminates the contract without just cause, it undertakes to pay to the player a compensation amounting to the residual value of the contract, from which it can deduct remuneration to be received by the player under a new contract corresponding to the duration of the breached contract.

(b) If the player terminates the contract without just cause, “notably by violation of clause ten of this contract, his transfer to a third club shall depend on the payment to [the club] of the amount of € 60,000,0000 …, without prejudice to the right assisting [Sporting CP] to require the player to pay the compensation set out in the labour legislation.”

6. On 15 May 2018, a group of i around 50 individuals, members of an association of supporters following Sporting CP, illegally entered Sporting CP’s facilities and proceeded to break in the building where the first team, including the player, was hosted. Some of Sporting CP’s employees and players were physically threatened and/or attacked.

7. On 13 June 2018, the player terminated the contract invoking just cause. In this respect, the player held that Sporting CP had breached its legal and contractual obligations and had caused harm to his personal and professional dignity as well as has his physical safety and integrity, which led him to fear for his life and impaired the minimum conditions required to exercise his activity as professional player. Making also reference to Portuguese labour law and the “collective employment contract” entered into between the Portuguese league and the union of professional players, the player stated that those conditions had been breached, making the employment relationship no longer sustainable.

8. On 30 July 2018, the “Comissao Arbitral Paritari (CAP)” (hereinafter: CAP) in Portugal ruled that the player had unilaterally terminated his contract, and issued a confirmation on 15 October 2018 which confirmed that its decision passed on 30 July 2018 became final and binding, a decision which validated the player’s termination for “sports purposes”. The decision stipulated that “he can proceed to the celebration of sports employment contract with third parties”.

9. On 17 October 2018, the player subsequently signed with the Emirati club, Al Ain FC (hereinafter: Al Ain) valid as from 1 October 2018 until 30 June 2019, and according to which the player would earn a total fixed remuneration of EUR 825,000 payable as follows:

(a) Signing on fee of EUR 105,000 within 30 days of signature;

(b) Monthly salary of EUR 80,000 payable in 9 instalments as from 31 October 2018 until 30 June 2019.

10. In this respect, Al Ain entered a transfer instruction in the Transfer Matching System (hereinafter: TMS) and requested the International Transfer Certificate (hereinafter: ITC) to Sporting CP on 4 January 2019, which was sent by the Federação Portuguesa de Futebol (hereinafter: FPF) on the same day. The United Arab Emirates Football Association (hereinafter: UAEFA) confirmed receipt of the ITC on 30 January 2019.

11. On 30 October 2018, Sporting CP lodged a claim against the player, requesting the FIFA Dispute Resolution Chamber to rule that the player had no just cause to terminate the contract, and that as a consequence he and Al Ain must be held jointly and severally liable to pay compensation of an amount of EUR 62,188,600 + 5% interest p.a. as from 14 June 2018, corresponding to :

(a) EUR 2,188,600 as the residual value of the contract prematurely terminated;

(b) EUR 60,000,000 as per art. 12 of the contract;

(c) CHF 40,000 as legal costs;

(d) and a 6 month playing ban on the player and two consecutive registration period ban against Al Ain should be imposed.

12. On 13 December 2018, the player replied to the claim of Sporting CP and first argued that the claim is not admissible. Alternatively, the player deemed that he had just cause to terminate the contract and lodged a counterclaim, requesting the following amounts:

(a) EUR 2,188,600 as compensation for breach of contract + 5% interest p.a. as from 14 June 2018;

(b) CHF 40,000 of legal expenses;

(c) and that a transfer ban of two entire consecutive registration periods be imposed on Sporting CP.

13. In its reply to the claim of Sporting CP, Al Ain rejected the claim of Sporting CP. Alternatively, Al Ain requested that the amount of compensation (if any) due to Sporting CP should be EUR 599,946 and that such amount shall be reduced to nil pursuant to art. 44 par 1 of the Swiss Code of Obligations.

Admissibility:

14. The player rejected Sporting CP’s position as to the jurisdiction of FIFA. In fact, the player contested the international dimension of the dispute, as it concerns a Portuguese club and a Portuguese player. The player first made reference to the exclusive arbitration clause in art. 11 of the contract which clearly stipulates that any dispute arising from the contract should be heard by the “Tribunal Arbitral do Desporto (TAD)” (hereinafter: TAD), the Portuguese court of arbitration for sport.

15. Further, the player made reference to ongoing criminal proceedings involving the player and Sporting CP and which are at the basis of the unilateral termination. The player consequently emphasised that it was not within FIFA’s powers to decide upon criminal matters and that in view of all the above the claim should be deemed not admissible.

16. Al Ain also argued that the competent body to assess the dispute between the player and Sporting CP was the relevant Portuguese court in line with the relevant national law of the country.

17. Sporting CP was of the opinion that the dispute should be heard by FIFA in view of the fact that the claim is of an international dimension since an ITC was requested and the player signed a contract with a non-Portuguese club.

Substance:

18. The player emphasized that since January 2018, the then-president of Sporting CP at the time started to put pressure on all the players via the media and via social media channels, allegedly bullying them during team meetings and creating a threatening environment around the team. He stated that such toxic atmosphere culminated in the training ground attack on 15 May 2018, and insinuated that the then-president of Sporting CP may have played a role in organizing this attack against the players.

19. The player stated that on that day, the attackers forced their way inside the club’s facilities and attacked the players in the changing room where they had retreated. He further alleged that the safety and security measures put in place by Sporting CP could not guarantee the safety of the players, that he did not receive any support afterwards, and as such highlighted that he could not continue the working relationship. In fact, the player made reference to ongoing criminal proceedings in which the player is involved as the claimant and two of Sporting CP’s club officials at the time (including its president at the time of the attack) are accused of having organized said attack.

20. The player indicated that in August 2018 he tried to discuss an amicable solution with Sporting CP at his own initiative, and presented an offer from a French club, which was rejected by Sporting CP. The player emphasized that he had not been contacted to return after his termination by Sporting CP. What is more, the player stated that after the election of the new president of Sporting CP, he once again tried to discuss an amicable solution in September 2018, to no avail.

21. Sporting CP for its part vehemently denied the accusations of the player regarding the negative atmosphere around the team. In particular, Sporting CP explained that the different messages published and/or sent by its former president to the press or to the team captains were (a) not directly addressed to him, (b) more rallying cries with constructive criticism in order to bring better results rather than personal threats, (c) and that in any case those critics after results and performances below the level of performance expected were part and parcel of the job of a professional footballer. In fact, Sporting CP referred to the “specificity of sport”, an industry with “strong public exposure” and higher level of scrutiny and consequently criticism.

22. Regarding the training ground attack on 15 May 2018, Sporting CP stipulated that it could not in any way condone these criminal actions, and emphasized that it took all possible measures to guarantee the safety of its employees (i.e. acting in respect of UEFA and the Portuguese FA safety and security regulations, club officials tried to refrain the attackers from entering the facilities), and that such extraordinary event was out of its control. Sporting CP underlined that “[it] as an employer cannot be held liable against every incident which potentially might happen”, and, pointing out to several incidents that had occurred between fans and players of other Portuguese teams, declared that those confrontations were quite common in Portugal.

23. As a consequence, Sporting CP stated that the player did not have just cause to terminate the contract. Sporting CP emphasized that:

(a) The severity of the incident on 15 May 2018 did not amount to a violation of the player’s personality rights and that he was not exposed to mobbing of any kind throughout their contractual relationship;

(b) The player did not send any complaint and/or warning and/or attempted to discuss his situation with Sporting CP and what is more the termination took place a month after the allegedly disturbing events, suggesting a possible opportunism in the player’s conduct;

24. In this respect, Sporting CP indicated that after the aforementioned events, it had appointed a new president with whom the player had discussed a transfer on 19 September 2018, a sign that the player’s allegations about the unsustainability of the contractual relationship since the events of May 2018 were contrived.

25. In fact, Sporting CP stated that the player rather appeared unwilling to continue the contractual relationship and sought to become a free agent in order to obtain a more lucrative contract elsewhere.

26. On the other hand, the player insisted on the fact that he was in his own right to have terminated the contract and signed with a new club. The player provided with a correspondence issued on 15 October 2018 by the CAP which confirmed that its decision passed on 30 July 2018 became final and binding, a decision which validated the player’s termination for “sports purposes”. The decision stipulated that “he can proceed to the celebration of sports employment contract with third parties”. What is more, the player pointed out that Sporting CP did not oppose the issuance of the ITC to Al Ain.

27. Al Ain argued that the player presented himself at the beginning of October 2018 as a free agent, and referred back to the decision of the CAP which confirmed that the player was free to register with a new club.

28. In this respect, Sporting CP highlighted that the CAP only took a decision as to the administrative correctness of the procedure of the termination, i.e. if the player respected the provisions sets out in art. 10 lit. (a) of the contract, but clearly stipulated that it was not in a position to take a decision as to the existence (or absence) of just cause.

29. Finally, with reference to clause 12 of the contract, Sporting CP indicated that said clause constituted a liquidated damages clause, which was mutually agreed by the parties upon signing and which was proportional. In fact, Sporting CP pointed out the reciprocity of the clause (i.e. the party unilaterally terminating the contract without just cause owes the residual value of the terminated contract to the other party), and explained that the EUR 60,000,000 additional compensation due in case of the player unilaterally terminating represented the mutually agreed sporting value of the player.

30. The player deemed that such compensation was totally disproportionate, bearing in mind that Sporting CP paid a transfer fee of EUR 400,000 when he recruited him in December 2017, and should be therefore deemed invalid.

31. Al Ain stated that this clause was “unfair” and in any case not due as the player terminated with just cause, and that in any case was invalid due to its lack of proportionality and reciprocity. Al Ain then proceeded to calculate the amount of compensation that would be in principle due to Sporting CP, and determined that such compensation should correspond to EUR 599,946. Al Ain based its calculation on Court of Arbitration for Sport (hereinafter: CAS) jurisprudence, and, inter alia, took into account the loss of a transfer fee, the cost of replacement, the value of the new contract etc.

32. Al Ain however argued that such compensation should be reduced to nil, in view of the fact that Sporting CP “laid the ground for damages” by causing the unilateral termination in line with art. 44 par. 1 of the Swiss Code of Obligations.

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 17 October 2018 and decided on 20 February 2020. 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.

2. Subsequently, 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. a) of the Regulations on the Status and Transfer of Players (edition January 2020), the Dispute Resolution Chamber is in principle competent to deal with the matter, which concerns an employment-related dispute with an international dimension between a Portuguese club, a Portuguese player and an Emirati club.

3. The DRC however acknowledged that the player and Al Ain contested the competence of FIFA’s deciding bodies on the basis of art. 25 of the contract, alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the TAD.

4. On the other hand, the Chamber noted that Sporting CP insisted on the competence of the FIFA DRC to adjudicate on the claim it lodged against the player and Al Ain, in view of the international dimension of the dispute given by the issuance of the ITC.

5. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. a) of the Regulations, FIFA is competent to hear ”disputes between clubs and players in relation to the maintenance of contractual stability (articles 13-18) where there has been an ITC request and a claim from an interested party in relation to said ITC request, in particular regarding the issue of the ITC, sporting sanctions or compensation for breach of contract.”

6. In this respect, the DRC deemed it appropriate to remind the parties that art. 22 a) applies to disputes between players and clubs of the same nationality, where the international dimension is given by the issuance of an ITC, provided also that an interested party disputes such request and/or claims sporting sanctions or compensation for breach of contract.

7. At this point, the DRC deemed it necessary to remind the parties that differently from art. 22 b) of the Regulations, art. 22 a) does not foresee the possibility for the parties to “explicitly opt in writing for such disputes to be decided by an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement”.

8. Having said that, the Chamber observed that the player and Sporting CP are both from Portugal and that the issuance of his ITC by the FPF in favour of the UAEFA is at the basis of the present claim for breach of contract. In view of the foregoing, the Chamber confirmed that all pre-requisites of art. 22 a) of the Regulations are fulfilled and therefore the DRC is competent to decide on the present dispute.

9. For the sake of completeness, the DRC pointed out that neither Sporting CP nor the player had lodged an employment-related claim in front of the TAD, and that the decision of 30 July 2018 issued by the “Comissao Arbitral Paritari (CAP)” in Portugal merely established that the player’s contract was unilaterally terminated, but did not analyse the justice (or injustice) of such termination.

10. Having established that it is competent to decide on the merits of the present dispute on the basis of art. 22 lit. a) of the Regulations, the Chamber analysed which edition of 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 on the Status and Transfer of Players (edition January 2020), and considering that the claim was lodged on 30 October 2018, the June 2018 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

11. 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 as well as the arguments and the documentation submitted by the parties. 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. In particular, the Chamber recalled that, in accordance with art. 6 par. 3 of Annex 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 TMS.

12. First of all, the Chamber acknowledged that, on 27 December 2017, the player and Sporting CP had concluded an employment contract valid as 11 January 2018 until 30 June 2020, pursuant to which the club undertook to pay to the player the remuneration, as established in point I./2. above.

13. Furthermore, the DRC took note of the fact that on 13 June 2018 the player unilaterally terminated the contract, after having been subject to an attack at the training ground of Sporting CP on 15 May 2018.

14. Then, the DRC acknowledged that on 17 October 2018, Sporting CP lodged a claim against the player for having terminated the contract without just cause on 15 May 2018, and, inter alia, claimed compensation in the amount of the residual value of the contract along with what Sporting CP argues to be a liquidated damages clause contractually agreed by the parties. In particular, the Chamber observed that Sporting CP declared that the player had used the events that took place at its training ground on 15 May 2018 as an excuse to terminate the contract and seek a better deal elsewhere. What is more, the Chamber noted that Sporting CP requested for Al Ain to be held jointly and severally liable for the payment of compensation.

15. Subsequently, the DRC observed that the player rejected the claim of Sporting CP and lodged a counterclaim against the Portuguese club, requesting, inter alia, the residual value of the terminated contract. In this respect, the Chamber duly noted that the player held that he had just cause to terminate the contract in view of the fact that the president of Sporting CP had created a toxic atmosphere around the team and had organised an attack perpetrated by followers of the club on 15 May 2018. As such the DRC observed that the player was of the opinion that Sporting CP failed to provide its duty of care and that the contractual relationship had become unsustainable.

16. Lastly, the Chamber remarked that Al Ain rejected the claim of Sporting CP, and argued that the compensation requested by Sporting CP should be reduced to nil.

17. In light of the foregoing, the DRC considered that the underlying issue in this dispute, considering the parties’ position, was to determine whether the player had just cause to terminate the employment contract and to determine the consequences thereof.

18. First and foremost, the Chamber emphasised that the events that occurred at the training ground of Sporting CP on 15 May 2018 were appalling. In this respect, and despite Sporting CP stating that such events were part and parcel of the profession of a footballer, the DRC insisted that it could not condone the actions of the individuals that perpetrated the attack on that day as something to be normally expected in the sporting life.

19. Without entering the analysis of the alleged toxic atmosphere within the Portuguese club during the second part of season 2017/2018, the Chamber highlighted that in principle, the player would have just cause to terminate the contract after those individuals physically threatened the players of Sporting CP in the changing room of the training ground where they retreated. In particular, the DRC emphasised that such experience in one’s workplace is undoubtedly traumatising, and understood that it cannot be expected from any player to normally resume the contractual relationship after such traumatic experience. What is more, the DRC pointed out that Sporting CP blatantly failed to provide its duty of care towards its players at this particular moment in time.

20. The Chamber, however, highlighted that the player terminated the contract on 13 June 2018, that is to say 1 month after the aforementioned events took place, and went on to determine whether the player still had just cause to terminate the contract on 13 June 2018.

21. After a thorough analysis of all the circumstances of the present case, the Chamber concluded –by majority, the Chairman exercising his casting vote -- that the player still had just cause to terminate the contract on 13 June 2018 based on the traumatic events he had been through on 15 May 2018, and that the contractual relationship with the club had been definitely broken at that point, Sporting CP having failed to provide its duty of care to the player..

22. The Chamber however considered that, while the point in time of the termination by the player may not have deprived him of having had a just cause to terminate the contract, even 1 month after the incident took place, it would certainly have an influence on the financial and sporting consequences of such termination.

23. In this respect, the DRC highlighted that from the information on file, Sporting CP in fact undertook some measures to improve a situation which was proven to be unsustainable for the continuation of the club’s and its players’ activities, the most relevant of which being the dismissal of the club’s then-president, which significantly improved the working conditions for the players. Thus, even though the player was still considered to have had just cause to terminate the contract on 13 June 2018, mainly based on the traumatising violence experience at his workplace, the Chamber deemed that the unilateral termination at a point in time where the club had already taken effective measures to transform the previous situation would deprive the player of receiving any amount of compensation from the club.

24. Therefore, without entering the analysis of the elements of art. 17 par. 1 of the Regulations, the DRC established that the player in spite of having had just cause to terminate his contract with Sporting CP on 13 June 2018, lost his right to receive any amount of compensation due to the point in time in which the decision to unilaterally terminate the employment contract was made.

25. Noting that no outstanding remuneration was claimed by the player, the DRC concluded its deliberations by rejecting the claim of Sporting CP and partially accepting the claim of the player.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Sporting Clube de Portugal, is admissible.

2. The claim of the Claimant / Counter-Respondent is rejected.

3. The claim of the Respondent / Counter-Claimant, Ruben Tiago Rodrigues Ribeiro, is partially accepted.

4. It is established that the Respondent / Counter-Claimant has terminated the employment relationship with the Claimant / Counter-Respondent with just cause.

5. The claim of the Respondent / Counter-Claimant for compensation for breach of contract is rejected.

6. Any further claim lodged by the Respondent / Counter-Claimant is rejected.

*****

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