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 16 August 2019

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 16 August 2019,

in the following composition:

Geoff Thompson (England), Chairman

Eirik Monsen (Norway), member

Johan van Gaalen (South Africa), member

Pavel Pivovarov (Russia), member

Daan de Jong (The Netherlands), member

on the matter between the club,

Club A, Country B

as Claimant

and the player,

Player C, Country B

as Respondent 1

and the club,

Club D, Country E

as Respondent 2

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 7 August 2015, the club of Country B, club A (hereinafter: the Claimant or club A) and the Player of Country B, Player C (hereinafter: Respondent 1 or the player), born on 14 April 1998, signed an employment contract (hereinafter: the first contract) valid for the seasons 2015/2016 and 2016/2017, specifically as from 1 July 2015 until 30 June 2017.

2. In accordance with the first contract, the player was entitled to receive inter alia the following remuneration: a. for the season 2015/2016, EUR 7,200 payable in 12 monthly instalments of EUR 600 each; b. for the season 2016/2017, EUR 8,400 payable in 12 monthly instalments of EUR 700 each; an accommodation allowance of a maximum of EUR 3,600 per season.

3. According to clause 6 of the first contract, “The PLAYER grants the Club A, the exclusive and excluding option of turning the player into a professional at any time during the duration of the present contract, and both parties commit to carry out the appropriate procedures to this effect. The parties agree that the Club A also reserves the option of signing a professional player contract with the player, if the latter expressly accepts it, for two more seasons”).

4. Furthermore, according to the same provision, “The player, due to the extension option granted to the CLUB for the renewal, if it is convenient to his interests, will receive the following amounts: - For the extension option granted for seasons 2017/2018, 2018/2019 and 2019/2020, he will receive in seasons 2015/2016 and 2016/17 the global amount of two thousand four hundred euros gross (2.400.-€); - This option will be paid in 24 monthly instalments during the 2015/2016 and 2016/2017 seasons, one hundred euros gross (100.-€)”).

5. According to clause 9 of the first contract, “For anything else not stipulated in the present contract, reference shall be made to the Decree of Country B of 26 June, which regulates the special labour relation of the professional athletes, the Collective Agreement and other applicable rules”).

6. Moreover, the first contract established that the conditions of the “new contract”, inter alia, would be that the salaries for the 2017/2018, 2018/2019 and 2019/2020 seasons would correspond to the “minimum Interprofessional Salary” of the category that the first team participates in.

7. According to club A, on 30 August 2016, it signed an employment contract (hereinafter: the second contract) with the player.

8. In respect to its duration, the second contract provided at clause 2:“This contract will have a duration of 1 SEASON + 3 OPTIONALS (always determined), beginning its validity on 01 July 2016 and ending on 30 June 2020”.

9. In accordance with the second contract, the player was entitled to a monthly salary of EUR 1,100 for the 2016/2017 season.

10. Pursuant to clause 6 of the second contract: “For anything else not stipulated in the present contract, reference shall be made to the Decree of Country B of 26 June, which regulates the special labour relation of the professional athletes, the Collective Agreement and other applicable rules”).

11. Furthermore, the second contract contains a chapter entitled “ADDITIONAL CLAUSES” which, inter alia, stipulates the following: “Granted the renewal option to Club A by the player, the conditions of the optional seasons will be: Seasons 17-18, 18-19 and 19-20 Minimum Interprofessional Salary corresponding to the category in which the 1st team participates in […] "Termination clause: the amount for unilateral termination in application of Art. 16 of Decree of Country B, of 26 June, of three million euros gross (3.000.000.-€), from the signing of the current contract with the club A, and ten million euros gross (10.000.000.-€), from the moment the player a professional registration with the First Team”).

12. According to club A, on an unspecified date, it sent a ‘new’ contract to the player, which allegedly contained the same clauses as the second contract and valid for the 2017/2018, 2018/2019 and 2019/2020 seasons, allegedly in order to reflect within in the digital system of both the League of Country B and Federation of Country B that the player was a part of the first team.

13. On 25 May 2017, the player sent a letter to club A by means of which, while referring to the first contract, rejected the extension of the contract emphasizing that, as a consequence, the employment relationship was to expire on 30 June 2017.

14. On 16 June 2017, club A replied in writing to the player, stating that it did not agreed to his rejection of the extension of the contract. club A enclosed a copy of a new contract valid for the 2017/2018, 2018/2019 and 2019/2020 seasons.

15. On 20 June 2017, the player informed club A that he would not sign a new contract and that he would not join the training sessions.

16. Subsequently on 11 July 2017, club A sent another letter to the player, referring to its previous communication of 16 June 2017.

17. On 12 July 2017, the player replied to club A insisting on his previous position.

18. On 12 July 2017, the player and the club of Country E, Club D (hereinafter: Respondent 2 or club D), signed an employment contract valid as from the date of signature until 30 June 2020, according to which the player was entitled to receive a monthly salary as follows: a. EUR 2,800 gross for the season 2017/2018; b. EUR 8,045 gross for the season 2018/2019; c. EUR 9,030 gross for the 2019/2020.

19. Furthermore, according to the information contained in the TMS, on 30 August 2017, club D was authorized by FIFA to provisionally register the player, after the decision taken by the Single Judge of FIFA’s Players’ Status Committee on 28 August 2017.

20. On 20 September 2017, club A lodged a claim against the player and club D in front of FIFA for breach of contract, requesting compensation in the amount of EUR 10,000,000 corresponding to the amount established in the termination clause of the second contract. Subsidiarily, Club A requested compensation in the amount of EUR 3,000,000.

21. Moreover, club A deemed that the player and club D must be held jointly liable to pay compensation and that sporting sanctions should be imposed on said parties.

22. More specifically, club A argued that the second contract is a “new” contract that replaces the first contract and that in the second contract the parties agreed to bind themselves to an employment relationship lasting for four seasons, as from 1 July 2016 until 20 June 2020, without subjecting its validity to any conditions.

23. Along this line, club A maintained that the player unilaterally terminated the contract without just cause by leaving the club and joining club D.

24. For his part, the player contested the competence of FIFA to deal with the present matter, arguing that he and club A had voluntarily agreed upon the exclusive competence of the Country B labour courts to deal with any employment-related dispute arising between them.

25. In this regard, the player referred to clause 6 of the of the second contract, the content of which is identical to clause 9 of the first one, in combination with article 19 of the relevant “Decree of Country B”, which establishes “Any conflicts arising between a professional athlete and their club or sport entity, as a consequence of their employment contract, will fall under the jurisdiction of the labour justice” (note: free translation from Country B).

26. In order to support his argumentation, the player referred to the DRC jurisprudence and to an arbitral award rendered by the Court of Arbitration for Sport (CAS) on 10 December 2015 (CAS 2015)

27. The player further argued that, in accordance with Law of Country B, namely the ‘Arbitration Law of 23 December’, labour disputes cannot be subject to arbitration.

28. Moreover, the player argued that his signature in the second contract has been forged, explaining that he does not recognize said document. In this regard, the player informed that he lodged a complaint against the club for forgery in front of the courts in Region F.

29. Club A, for its part, insisted on the competence of FIFA to deal with the present matter. In this regard, club A referred to art. 22 of the Regulations on the Status and Transfer of Player and referred to the fact that, since a third club (i.e. club D) requested the ITC of the player, the international element to the dispute had been provided.

30. Subsidiarily, club A requested that, should FIFA DRC deem its claim against the player not admissible, the said body continue the matter at hand against club D and against the player in respect to the imposition of sporting sanctions.

31. In relation to the forgery allegation of the second contract raised by the player, club A insisted that said document was not forged and that the player freely signed it.

32. After being requested to provide an original specimen of the second contract, club A stated that it would not provide the only original specimen in its possession. However, club A provided a notarized copy of the second contract, certified as being a true copy of the original by a Public Notary, and held that it should be considered equivalent to an original specimen.

33. As to the substance, the player held that the second contract must be deemed null since he did not provide consent. In this regard, the player acknowledged signing the first contract, but deemed that the unilateral renewal option included there is null.

34. Furthermore, the player explained that, since his explicit consent to the extension was needed, he informed club A that he decided not to accept the extension.

35. In addition, the player maintained that, in any case, the extension option in the second contract is a unilateral option in favour of club A only and, therefore, must be deemed null. The player held that in accordance with “Decree of Country B” said clause has to be considered null.

36. Finally, the player argued that at any rate, the amounts provided in the termination clause of the first and second contract are disproportionate and cannot be taken into account.

37. In reply to the claim of club A, club D argued primarily that the first contract is null due to its alleged violation of art. 18.2 of the RSTP, since the player was underage when he signed it, and that the options provided in clause 6 of the first contract would lead to the contract having a length superior to the 3 years-limit provided in said article of the RSTP. Furthermore, club D asserted that the player explicitly rejected the extension.

38. As to the second contract, club D argued that the player contested the authenticity of the signature on it, and denied signing it. In this respect, club D put forward the fact that the player lodged a complaint against the club for forgery in front of the Country B courts in Region F.

39. Still on the second contract, club D asserted that the extension options provided in it are unilateral and at the sole discretion of club A, which makes those null and void. Club D added that the second contract is not detailed enough, as it does not provide for the amount of the salary of the player.

40. Club D further argued that the extension options from the second contract are in contradiction with art. 6 of “Decree of Country B”, making reference to the player’s reply to the claim.

41. On the amounts requested as compensation, club D deemed that the termination clause could not be taken into account as it was not reciprocal, and that, in any case, the amount claimed was disproportionate.

42. Finally, club D affirmed that it did not induce the player into breaching the contract with club A. club D argued that, before signing the player, it inquired upon his situation and was provided by the player and his representative with the first contract and the letter of 25 May 2017 of the player by means of which he rejected the extension of the first contract. club D explained that it had analysed the first contract as well as the other documents provided to it and had concluded that the player was free to sign for club D as the first contract ended on 30 June 2017 and the player rejected the extension.

43. In its replica, club A insisted on the validity of the second contract, and that it should be considered a new contact and not, necessarily, an extension of the former one.

44. In this regard, club A argued that the remuneration provided in the second contract does not refer to any type of renewal.

45. In his duplica, the player insisted on his position and reiterated that, without prejudice to his forgery allegation of the second contract, taking into account the wording of clause 2 of said document, it is beyond doubt that the validity of the contract is for 1 season, plus 3 possible “optional” seasons. The player deemed that this is a unilateral extension option in favour of club A.

46. Moreover, the player deemed that, in any case, taking into account the wording of the first contract, should the DRC consider that he had indeed signed the second contract, the said document would have to be interpreted just as the first contract since it referred to the same optional seasons.

47. In its duplica, club D reiterated its previous arguments.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter 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 20 September 2017. Consequently, the 2017 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 in combination with art. 22 a) of the Regulations on the Status and Transfer of Players (edition June 2019; hereinafter: the Regulations), the Dispute Resolution Chamber shall, in principle, adjudicate on disputes between clubs and players in relation to the maintenance of contractual stability when there has been an ITC request and a claim from an interested party in relation to said ITC request.

3. However, the Chamber acknowledged that the player contested the competence of the FIFA DRC to deal with the present case, alleging the exclusive competence of the Country B labour courts, based on article 19 of the Decree of Country B, which regulates the labour relation of the professional athletes, the Collective Agreement and other applicable rules.

4. In particular, the Chamber took due note of the player’s argument, according to which the parties, by means of clause 9 of the first contract and clause 6 of the second one, the content of which is identical (cf. points I.5., I.10. and I.25. above), had voluntarily agreed upon the exclusive competence of the labour courts in Country B to deal with any employment-related dispute arising between them.

5. The Chamber also noted that club A rejected the said argument and, consequently, the competence of the Country B labour courts over the present affair, alleging that the case has an international dimension in accordance with art. 22 of the Regulations due to the fact that club D requested the ITC of the player. The Chamber thus noted that, according to club A, the FIFA DRC should have jurisdiction over the present dispute. Moreover, the DRC took note that club A subsidiarily requested that, should the claim against the player be deemed not admissible, the DRC rule nonetheless on the matter at hand against club D and against the player in respect to the imposition of sporting sanctions.

6. Bearing in mind the foregoing, the members of the Chamber firstly recalled that the first and the second contracts contain, respectively at clause 9 and 6, a provision of identical tenor according to which “for anything else not stipulated in the present contract, reference shall be made to the Decree of Country B of 26 June, which regulates the special labour relation of the professional athletes, the Collective Agreement and other applicable rules”. Consequently, the DRC deemed that, for the purpose of determining whether FIFA is competent to deal with the matter at hand, there was no need to enter into the question as to whether the second contract had been indeed signed by the player.

7. In this context, the Chamber pointed out that the content of clause 9 of the contract was voluntarily agreed upon by the parties, when signing the first contract on 7 August 2015.

8. In this regard, the Chamber also referred to the wording of article 19 of the Decree of Country B, which establishes that “Any conflicts arising between a professional athlete and their club or sport entity, as a consequence of their employment contract, will fall under the jurisdiction of the labour justice”.

9. At this point, the Chamber deemed it appropriate to emphasize that article 22 of the Regulations does not prohibit players and clubs from referring employment-related disputes possibly arisen between them to the local, national courts, should they have agreed upon the jurisdiction of said national courts.

10. Having stated the above, the Chamber concluded that, in the present case, the parties, when signing the relevant employment contract, had voluntarily and beforehand agreed upon the content and the applicability of its clause 9, and accepted the exclusive jurisdiction of the Country B labour courts to decide upon any employment-related dispute arisen between them, in accordance with article 19 of the Decree of Country B.

11. Moreover, the members of the Chamber made reference to the arbitral award rendered by the Court of Arbitration for Sport (CAS) on 10 December 2015, by means of which said body ruled, in the scope of an analogues dispute and in relation to a clause with the exact same wording as clause 9 of the first contract (clause 6 of the second), that FIFA’s DRC was not competent to deal with such dispute because of the exclusive jurisdiction of the Country B labour courts and in accordance with the choice of forum contained in the relevant contract (CAS 2015).

12. In consideration of all the foregoing, the Chamber concluded that the claim lodged by club A before the FIFA DRC was inadmissible.

13. The foregoing having been established, the Chamber recalled that, in a subsidiary way, club A asked that, should the DRC deem its claim inadmissible, it rendered a decision anyway against the player and club D exclusively for sporting sanctions.

14. In this respect, the members of the DRC were eager to emphasise that any considerations regarding possible inducements to a breach of contract as established in art. 17 of the Regulations are always accessory to the main finding concerning the breach of contract and cannot constitute a legal ground for an independent claim. In other words, if – like in the matter at stake – due to procedural reasons, it is not possible to enter into the merits of whether a player has terminated an employment contract without just cause in the first place, it follows that it is not possible to rule on the eventual inducement. Along these lines, the members of the Chamber pointed out that the Regulations do not foresee the possibility that the DRC solely decides on the consequences of a termination of an employment contract without having previously decided whether a contractual breach indeed occurred, whether such breach was with or without just cause and which party is to be deemed responsible.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Club A, is inadmissible.

*****

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, a copy of which we enclose hereto. 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

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer