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 13 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 13 February 2020,

by

Johan van Gaalen (South Africa)

on the claim presented by the club,

Al Mesaimeer Sports Club, Qatar

as Claimant / Counter-Respondent

against the player,

Javier Balboa Osa, Spain,

represented by Mr Alterto Ruiz de Aguiar Díaz-Obregón

as Respondent / Counter-Claimant

regarding an employment-related dispute

between the parties

I. Facts of the case

Overview of the case and contractual basis

1. On 17 July 2017, the player, Javier Balboa Osa (hereinafter: the player or Respondent / Counter-Claimant), signed an employment contract (hereinafter: contract) with the club, Mesaimeer SC (hereinafter: the club or Claimant / Counter-Respondent), valid as from 1 July 2017 until 31 May 2018 for a total remuneration of QAR 705,000.

2. The contract stipulated the following:

Art. V

“1. If the Player violates any of the obligations to which he is subject under this Contract, the Club, without prejudice to any other legal actions, may impose disciplinary sanctions on the Player.

2. These disciplinary related sanctions and other matters are set forth in the Club’s own disciplinary regulations provided to the Player.”

Art. IX

“1. This Contract begins on 01/07/2017 and terminates on 31/05/2018”

Art. X

“3. This Contract may be terminated by either party, without consequences for the terminating party, where there exists just cause at the time of the contract termination.

4. If the Club terminates the Contract without having just cause, the Club shall pay to the Player compensation equal to the amount of:

The remaining amount of the contract value at the termination date.

5. If the Player terminates the Contract without having just cause, the Player shall pay to the Club compensation equal to the total amount of:

The remaining amount of the contract value at the termination date.”

Schedule 1

“2. Concerning the season 2017/2018 the Player shall receive from the Club the total amounts as follow:

a. Signing-on fee: NONE

b. Monthly salary:

49772,727 QR [Qatari Rial] to be paid at the end of each Gregorian month for the period from 01/07/2017 until 2018/05/31.

3. Other entitlements:

The Club shall provide the Player for each season with housing, a car and return flights return tickets in economy class for the route (Doha – Madrid – Doha) with a total value of 157500 QR per season.”

Position of the parties

3. On 5 March 2018, the club lodged a claim in front of FIFA and argued that the player terminated the contract prematurely without just cause on 19 February 2018 and left Qatar the following day. The club maintained that the player did not have outstanding remuneration by the time he terminated due to the penalties that had been imposed on him on 11 December 2017 for USD 5,000 “due to [his] failure of the to follow the treatment prescribed by the medical team” and on 20 January 2018 for a total amount of USD 18,636.36 (“deduction from his monthly salary for December 2017, Jan 2017 and Feb 2017”) allegedly due to an unauthorised leave.

4. The club specified that after the player got injured twice, once on 27 July 2017 and the second time on 17 August 2017, it had rejected his requests for leave. However, the club recalled, the player left the country on 21 December 2017 to return ten days later.

5. The club concluded that, due to his injury, the player did not contribute much for the team (playing “only for 32 minutes”) while receiving his salaries and terminated the contract having received all his financial entitlements.

6. The player confirmed the two injuries and that he underwent tests at the medical facility indicated by the club. The player recalled that he finally managed to play again on 19 October 2017 in an official match, however, he felt pain again and at the end of October 2017 underwent another scan and the diagnosis “it is very difficult to predict a return to play”.

7. The player further explained that, on 4 November 2017, he was convened for a meeting with the club’s management, where he was notified the club’s wish to terminate the employment relationship. The player claimed that, after he had rejected the club’s proposal to terminate, the club started addressing him with numerous correspondences, one after the other, convening him for meetings and then imposing on him a penalty of USD 5,000 for not attending.

8. Moreover, the player claimed he was given a report from the medical facility in Qatar by means of which he was “cleared to leave Qatar for vacation break of a couple of weeks” and that he would “continue with a home exercise program while away and return to Qatar at the end of December for further evaluation and management” and he communicated his intention to the club accordingly. The player added that, when he returned from his annual

leave, he was prevented from accessing the premises of the medical and the club had

imposed further financial penalties, deducting moneys from his salary. Consequently, the

club maintained that he had accrued the following outstanding remuneration:

Month Year Date of payment Amount due Amount paid Outstanding amount

9. Furthermore, the player claimed that he had always received his salaries late, as follows:

10. The player explained that, after having put the club in default on 9 February 2018 for the

abovementioned outstanding salaries, terminated the contract on 19 February 2018.

11. The player informed FIFA that he did not sign any other employment contract after the

termination of the contract with the club.

Requests by the parties

12. The club requested the following:

“1. To impose appropriate sport penalty on the player as he has violated the contract signed

with the Club unilaterally without any fair reason or sport cause and out of enrolment

period. This had made the Club unable to register another player in its team

2. To claim the player with the amount of remaining contract in addition to the rest amount

from the penalty imposed for the overstay of his family, amount of USD 47920.29.

3. To compensate for the lawyer’s fees and expenses, amount of USD 5000”.

13. The player, for its part, asked that the claim be rejected and on 11 May 2018, lodged a counterclaim that he be awarded the amount of:

- QAR 63,598.46 as outstanding remuneration plus 5% interest as from the due dates;

- QAR 300,000 as compensation for breach of contract plus 5% interest p.a.

II. Considerations of the DRC judge

1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 5 March 2018. 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 DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition January 2020) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Spanish player and a Qatari club.

3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition January 2020), and considering that the present claim was lodged on 5 March 2018, the June 2018 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. Subsequently, the DRC judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. In particular, the DRC judge 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. In this respect, the DRC judge acknowledged that the parties to the dispute had signed a valid employment contract on 17 July 2017, in accordance with which the club would pay the player a monthly salary in the amount QAR 49,772.727.

6. The DRC judge then reviewed the claim of the club, which maintained that the player did not have just cause to terminate the contract on 19 February 2018 as the club fully complied with its financial obligations. Moreover, the DRC judge noted that the club deemed that due to the player’s behaviour it imposed several fines on him. Consequently, the club asked to be awarded, inter alia, with compensation for breach of contract.

7. The DRC judge then turned its attention to the claim of the player and acknowledged that the latter argued that he had just cause to terminate the contract as the club failed to pay his salary in accordance with the contract and despite being put in default, the club didn’t comply with its contractual obligations.

8. On account of the above, the DRC judge highlighted that the underlying issue in this dispute was to determine as to whether the contract had been unilaterally terminated with or without just cause by the player on 19 February 2018. The DRC judge also underlined that, subsequently, if it were found that the contract was terminated with just cause, it would be necessary to determine the consequences thereof.

9. In this regard, the DRC judge continued to analyse the arguments put forth by the player and club, as well as the documentation provided by the parties. In particular, the DRC judge took note of the club’s arguments that it imposed two fines on the player. The first one being due to the player’s alleged “failure to follow the treatment prescribed by the medial team” and the second one due to the player’s unauthorised leave.

10. Continuously, the DRC judge acknowledged the player’s argument that he was given a report from the medical facility in Qatar by means of which he was “cleared to leave Qatar for vacation break of a couple of weeks” and that he would “continue with a home exercise program while away and return to Qatar at the end of December for further evaluation and management” which was communicated to the club accordingly.

11. With this in mind, the DRC judge concluded that the salary deductions via disciplinary sanctions were not justified in light of the player’s legitimate expectations, due to the clearance received by the same medical facility indicated by the club, that he could leave for his annual leave and keep his physiotherapy exercises in Spain.

12. In continuation, with particular regard to the imposition of a fine, the DRC wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to offset outstanding financial obligations towards players. Consequently, the DRC judge decided to reject the club’s argument in this regard.

13. On account of the above, the DRC judge established that on 19 February 2019, considerable partial amounts of three monthly salaries for November and December 2017, as well as January 2018 were not fully paid and therefore, a total amount of QAR 63,598.46 remained outstanding. Considering the outstanding amounts and the club’s continuous imposition of unjustified sanctions, the DRC judge concluded that the player had a just cause to unilaterally terminate the contract on 19 February 2019 and that the club is to be held liable for the early termination of the contract with just cause by the player.

14. Having established the above, the DRC judge turned his attention to the question of the consequences of the unilateral termination of the contract by the player with just cause on 19 February 2019.

15. First of all, the DRC judge concurred that the club must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC judge decided that the club is liable to pay to the player the remuneration that was outstanding at the time of the termination, i.e. the amount of QAR 63,598.46, consisting of the unpaid part of the monthly salaries from November 2017 until January 2018.

16. Furthermore, considering the player’s claim for interest and also taking into account the DRC’s longstanding jurisprudence, the DRC judge ruled that the Respondent must pay interest as follows:

a. 5% p.a. on the amount of QAR 18,250 as from 1 December 2017;

b. 5% p.a. on the amount of QAR 22,674.23 as from 1 January 2018;

c. 5% p.a. on the amount of QAR 22,674.23 as from 1 February 2018.

17. In continuation, the DRC judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC judge 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.

18. In application of the relevant provision, the DRC judge held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. Upon careful examination of the employment contract concluded between the player and the club, the DRC judge took note that article X points. 3. 4. and 5. provides that:

“3. This Contract may be terminated by either party, without consequences for the terminating party, where there exists just cause at the time of the contract termination.

4. If the Club terminates the Contract without having just cause, the Club shall pay to the Player compensation equal to the amount of: The remaining amount of the contract value at the termination date.

5. If the Player terminates the Contract without having just cause, the Player shall pay to the Club compensation equal to the total amount of:

The remaining amount of the contract value at the termination date.”

19. The DRC judge duly analysed the contents of said clause and acknowledged that the aforementioned clauses provide for the amount of compensation payable in the event of the termination of the employment contract without just cause by either party. The DRC judge deemed that said clause could be applied by analogy to the termination with just cause by either party. In this respect, the DRC judge acknowledged that said contractual clause did not include a precise and specific amount of compensation, however, it clearly provided for a determinable amount of compensation payable in the event of breach of the contract, which amount corresponds to the remaining value of the employment contract, which was not considered disproportionate by the DRC judge.

20. On account of the above, the parties having contractually agreed on the compensation payable in the event of breach of contract and such compensation not being deemed disproportionate, the DRC judge concluded that the provision contained under article X points 3. 4. and 5. of the pertinent employment contract has to be considered as valid and fully effective, i.e. the amount of compensation provided for in said article shall be awarded to the Claimant.

21. Bearing in mind the foregoing, the DRC judge 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 QAR 356,590 as remuneration for the period as from February until May 2018. Consequently, the DRC judge concluded that the amount of QAR 356,590, corresponding to the monthly salaries for February until May and the amounts as stipulated in the paragraph “other entitlements”, would, in principle, serve as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. Having said that, the DRC judge, however, noted that the player limited the amount claimed to QAR 300,000 and therefore, the DRC judge used said amounts to the calculation of the compensation.

22. In continuation, the DRC judge assessed whether the player 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.

23. In respect of the above, the DRC judge noted that, according to the information contained in the TMS and provided by the player, the player had not signed a new employment contract after February 2018 and therefore had not been able to mitigate his damages. Therefore, no further deductions should be made to the amount of QAR 300,000, in accordance with art. 17 par. 1 lit. i) of the Regulations.

24. Consequently, on account of all the above-mentioned considerations, the DRC judge decided that the club must pay the amount of QAR 300,000 as compensation for breach of contract to the player, which is considered by the DRC judge to be a fair and reasonable amount.

25. In addition, taking into consideration the player’s claim, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of QAR 300,000 as of the date of the claim, i.e. 5 March 2018, until the date of effective payment.

III. Decision of the DRC judge

1. The claim of the Claimant / Counter-Respondent, Al Mesaimeer Sports Club, is rejected.

2. The claim of the Respondent / Counter-Claimant, Javier Balboa Osa, is accepted.

3. The Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of QAR 63,598.46, plus interest until the date of effective payment as follows:

a. 5% p.a. on the amount of QAR 18,250 as from 1 December 2017;

b. 5% p.a. on the amount of QAR 22,674.23 as from 1 January 2018;

c. 5% p.a. on the amount of QAR 22,674.23 as from 1 February 2018.

4. The Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of QAR 300,000, plus 5% interest p.a. as from 5 March 2018 until the date of effective payment.

5. In the event that the amounts due to the Respondent / Counter-Claimant in accordance with the above-mentioned numbers 3. and 4. are not paid by the Claimant / Counter-Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

6. The Respondent / Counter-Claimant is directed to inform the Claimant / Counter-Respondent immediately and directly of the account number to which the remittances in numbers 3. and 4. above are to be made and to notify the DRC judge of every payment received.

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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 DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer