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 8 May 2020

Decision of the

Dispute Resolution Chamber

passed on 8 May 2020,

in the following composition:

Clifford J. Hendel (USA & France), Chairman

Alexandra Gómez Bruinewoud (Uruguay & Netherlands), member

Stefano La Porta (Italy), member

on the claim lodged by the player,

Player A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 4 July 2019, the player of Country B, Player A (hereinafter: the player or the Claimant) concluded an employment contract (hereinafter: the contract) with the club of Country D, Club C (hereinafter: the club or the Respondent), valid as from 1 July 2019 until 30 June 2023.

2. In accordance with art. 13.1 of the contract, the player was, inter alia, entitled to the following amounts:

“In second highest football league in Country D: Salary per month: 68,800 gross in the currency of Country D.

In highest football league in Country D: Salary per month: 80,000 gross in the currency of Country D.”

3. On 28 January 2020, the player lodged a claim in front of FIFA against the club for breach of contract and requested the following:

- 68,000 in the currency of Country D, as outstanding remuneration, corresponding to the salary for December 2019, plus 5% interest p.a. as from 1 January 2020;

- 2,856,000 in the currency of Country D or 3,360,000 in the currency of Country D as compensation for breach of the contract, plus 5% interest p.a. as from 24 January 2020;

- USD 1,000 as legal costs.

- Sporting sanctions to be imposed on the Respondent.

4. In his claim, the player claimed that on 5 December 2019, upon his departure from Country D to go back to Country B for vacation, he was asked by a club’s employee to return his house key and to sign a termination agreement, which he refused to do.

5. The player further claims that on the same day, he was told by a club’s employee that the contract had been terminated.

6. In this regard, the player provided several screenshots of the following text messages exchanged with Mr. E, the team manager of the club, in which the player repeatedly stated that he didn’t sign any termination agreement:

5 December 2019

Player: “But is contract so the club should pay me”

Mr. E: “Unless you signed something together with Mr. F [Director of the club]”

Player: “Pls what thing I should sign with Mr. F”

Mr. E: “If Mr. F told you that they cancel the contract, then they cancel the contract. Then you must have signed the cancelling paper.”

Player: “Yes”, “But I don’t have any paper”, “I didn’t sign any paper yet”

Mr. E: “You signed something a couple of months ago right?”

Player: “Yes”, “That I show you is insurance paper”

6 December 2019

Player: “And we didn’t sign a cancel contract paper”

Mr. E: “I don’t know what you signed. But it is done.”

Player: “I didn’t not sign anything pls”

Mr. E: “You must have. I don’t know, but it is done. So nothing to do”

Player: “Is not done pls”

2 January 2020

Player: “I said I have four years contract with Club C that is why am coming there pls”, “Because when I was in Country B and I didn’t have contract with Country D team I did not come to Country D to do anything there because now I have contract that is why am coming there”

Mr. E: “But the contract is cancelled.”

Player: “Who cancel it”

Mr. E: “The club.”

7. In addition, the player also provided several screenshots of the following text messages exchanged with Mr. F, the director of the club:

22 December 2019

Player: “Boss I heard you said you have cancel my contract”, “Boss how can you cancel my contract I don’t know”, “And I will report to camp when the team is back”

Mr. F: “Your contract is terminate”

Player: “Boss who terminate the contract”, “I have four years contract and you have terminate the contract how it is possible”, “And I did not sign any thing show that I cancel my contract pls who will do that”

Mr. F: “Mr. G have you terminate contract” (Mr. G is an intermediary from Country B).

8. Moreover, the player deemed that on 19 December 2019, the League of Country D approved the contract termination.

9. In addition, the player argued that on 21 December 2019, he tried to contact the Respondent’s president, who informed him that the contract had been terminated.

10. On 8 January 2020, the Claimant put the Respondent in default, arguing that he never signed the termination agreement and that the signature in the termination agreement is forged, and gave 3 days for the Respondent to confirm that the Claimant was still a player of the Respondent.

11. On 14 January 2020, the Claimant put the Respondent in default again, arguing that the Respondent did not reply to the first default letter, he reiterated his previous arguments and requests, and gave the club 2 more days to react. He reiterated his default notice on 20 January 2020 adding that if no reply was received within 2 days, he would consider the contract unilaterally terminated by the Respondent without just cause.

12. In its reply, the club claimed that the contract was mutually terminated on 5 December 2019, with effect as from 31 December 2019. The club claimed this was a result of discussions with the player, who was not adapting well to living in Country D, away from him wife and children, and was unsatisfied with his fielding time.

13. Furthermore, the club claimed to have discovered only later on that the player signed an intermediary agreement with the same person that had a scouting agreement with the club, jeopardising the neutrality of the intermediary.

14. In addition, the club deemed that the player had agreed to terminate the contract, but probably changed his mind later on after contacting someone who was possibly not satisfied with his decision.

15. In view of the player’s allegations that the termination agreement had been forged, the club was requested to provide the original version of it, which it effectively did.

16. The alleged termination agreement stipulated the following:

“2.1 The Club will remunerate the Player and the Player will accrue holiday leave in accordance with the Player’s Contract up to and including the Termination Date. The Club will settle due pay, bonuses and other remuneration agreed in the Player’s Contract in the usual manner in accordance with the Club’s normal payroll runs and other payment routines unless otherwise agreed in Section 7 below. The Club will also calculate holiday pay in the usual manner on termination and transfer the holiday pay due to the Player to leave account within the period allowed under the Holiday Act of Country D in this respect – reckoned from the Termination Date.”

“4.1 The Club will not pay the Player a share of the remaining contract amount.”

“5.2 The Club will not pay the Player a severance pay.”

17. The player informed FIFA that he did not sign a new employment contract.

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 28 January 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 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition March 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player of Country B and a club of Country D.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition March 2020), and considering that the claim was lodged on 28 January 2020, the January 2020 edition of the aforementioned regulations (hereinafter: the 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 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.

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the members of the Chamber acknowledged that, on 4 July 2019, the player and the club had concluded an employment contract valid as from the 1 July 2019 until 30 June 2023, pursuant to which the club undertook to pay to the player the remuneration, as established in point I.2 above.

7. Moreover, the DRC took note that, according to the player, the club terminated the contract without just cause and that the termination agreement allegedly signed on 5 December 2019 is a forgery.

8. Subsequently, the members of the DRC took note that the Respondent, for its part, requested to fully reject the claim as it deemed that the parties concluded a valid termination agreement that does not provide for any payment due to the player.

9. At this stage, the DRC considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

10. In continuation the DRC recalled that all documentation remitted shall be considered with free discretion and, therefore, the Chamber focused its attention on the termination agreement of 5 December 2019 as well as on other documents containing the Claimant’s signature, provided by the parties in the context of the present dispute. In this regard, the DRC pointed out that the original version of the alleged termination agreement was provided by the Respondent.

11. After a thorough analysis of the aforementioned document, in particular, comparing the relevant signature of the Claimant on the termination contract with the signature on the employment contract, the members of the Chamber noted that for a layman the signature on the termination agreement did not appear to be the same as the signature on the employment agreement.

12. In addition, the Chamber observed that the Claimant informed the Respondent several times, immediately after the alleged conclusion of the termination agreement, that the player did not sign any termination agreement.

13. In view of the all of the above, and based on the documentation currently at its disposal, the DRC came to the conclusion that it could not take the termination agreement into consideration.

14. Consequently, the DRC observed that the club did not submit sufficient evidence in order to prove that the employment contract was terminated by mutual consent.

15. As a result of the foregoing, due to the lack or arguments and evidence provided by the club, the Chamber came to the conclusion that the Respondent terminated the contract with the player on 31 December 2019 without just cause.

16. As a result, the Chamber decided that the Respondent is to be held liable for the early termination of the employment contract with just cause by the player.

17. Having established that the Respondent is to be held liable for the early termination of the employment contract, the DRC focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC established that the player is entitled to receive from the Respondent compensation for breach of contract, in addition to any outstanding payments on the basis of the relevant employment contract.

18. Along those lines, the DRC firstly referred to the player’s request regarding the outstanding remuneration at the time of the unilateral termination of the employment contract. In this respect, the DRC concurred that the Respondent must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”.

19. Consequently, and bearing in mind that the Respondent terminated the employment contract on as per 31 December 2020, the Chamber decided that the Respondent is liable to pay to the player outstanding remuneration in the amount of 68,000 in the currency of Country D, pertaining to his monthly salary of December 2019.

20. Furthermore, considering the player’s claim for interest and also taking into account the DRC’s longstanding jurisprudence, the DRC ruled that the Respondent must pay 5% interest p.a. as from 1 January 2020 until the date of effective payment.

21. In continuation, the DRC 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.

22. In application of the relevant provision, the DRC 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 Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

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

24. The Chamber then turned its attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the members of the DRC to be essential. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

25. Bearing in mind the foregoing, the DRC proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from the date of termination with just cause by the Claimant until its natural expiration, bearing in mind that he would have received in total 2,856,000 in the currency of Country D as remuneration as from January 2020 until June 2023. Consequently, the Chamber concluded that the amount of 2,856,000 in the currency of Country D serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

26. In continuation, the DRC 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 enabled to reduce his loss of income.

27. In respect of the above, the members of the Chamber noted, that according to the player and the information contained in TMS, the player had not signed a new employment contract after 31 December 2020 and therefore had not been able to mitigate his damages. Therefore, no further deductions should be made to the amount of 2,856,000 in the currency of Country D, in accordance with art. 17 par. 1 lit. i) of the Regulations.

28. Consequently, on account of the above-mentioned considerations, the DRC decided to partially accept the Claimant’s claim and held that the Respondent must pay the amount of 2,856,000 in the currency of Country D as compensation for breach of contract to the Claimant.

29. In addition, taking into account the player’s request and the DRC’s well-established jurisprudence, the Chamber decided that the club must pay to the player interest of 5% p.a. on the amounts of 2,856,000 in the currency of Country D as of the date on which the claim was lodged, i.e. 28 January 2020 until the date of effective payment.

30. Subsequently, the Single Judge decided to reject the Claimant’s claim pertaining to legal costs in accordance with FIFA’s longstanding jurisprudence in this regard.

31. Therefore, the DRC decided to partially accept the player’s claim and concluded its deliberations by rejecting any further claim of the player.

32. 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.

33. 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.

34. 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.

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

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant outstanding remuneration in the amount of 68,000 in the currency of Country D plus interest at the rate of 5% p.a. as from 1 January 2020 until the date of effective payment.

3. The Respondent has to pay to the Claimant compensation in the amount of 2,856,000 in the currency of Country D plus interest at the rate of 5% p.a. as from 28 January 2020 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 amounts mentioned under points 2 and 3 above.

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

7. In the event that the amount due plus interest in accordance with points 2 and 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 plus interest 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 motivated decision (legal remedy):

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 (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport (CAS)

Avenue de Beaumont 2, CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer