F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 18 November 2020

Decision of the

DRC Judge

Passed on 18 November 2020,

regarding an employment-related dispute concerning the player Roger Cañas Henao

BY:

Pavel Pivovarov (Russia), DRC Judge

CLAIMANT:

FC SHAKHTYOR SOLIGORSK, Belarus

Represented by Mr. Timour Sysouev

RESPONDENT 1:

ROGER CAÑAS HENAO, Colombia

RESPONDENT 2:

FC IRTYSH, Kazakhstan

I. Facts of the case

1. On 16 March 2018, FC Shakhtyor Soligorsk (hereinafter “the Claimant”) and the player Roger Cañas Henao (hereinafter “the First Respondent” or “the Player”) concluded an employment contract (hereinafter “the Contract”) valid as of 16 March 2018 until 15 December 2018.

2. According to the Contract, the Player had the “position of a sportsman-instructor of 16th tariff category in staff of the football team” and the Claimant undertook to pay the First Respondent a monthly gross salary of Belarusian Roubles (BYN) 23,048.

3. According to the Claimant, the Player was absent without a valid reason from his workplace as of 19 August 2018. In this regard, the Claimant held that the Player “did not inform the employer of the reasons for his absence”.

4. On 14 December 2018, the Claimant confirms it dismissed the Player due to his absence in accordance with Belarusian law, in writing.

5. On 31 January 2019, the Player and Kazakh club FC Irtysh (hereinafter “the Second Respondent”) signed an agreement as per which in case of a dispute in front of FIFA or the Court of Arbitration for Sport between the Player and the Claimant, the Second Respondent would be liable for the payment of 1% of any amount of compensation due to the Claimant and the Player of 99% of the compensation.

6. On 1 February 2019, the First and the Second Respondent concluded an employment contract, valid as from 1 February 2019 until 30 November 2019. This contract was terminated on 1 July 2019 by mutual consent.

7. On 23 August 2019, the Claimant contacted the Player and the Second Respondent requesting the payment of compensation.

8. On 18 October 2019, the Player replied to the Claimant stating:

“I repeatedly want to note that I’m not agree with your position regarding termination of contract. Moreover, I’m interested why club orally informed me that I don’t need to come back to the location of the club and currently when we have several months passed club is trying to collect from me compensation for breaching the rules of contract. Could you be so kind to clarify me(?)”.

9. In its claim, the Claimant argued that the Player terminated the Contract unilaterally and without just cause on 19 August 2018 when he left the discipline of the Claimant.

10. In this regard, the Claimant requests FIFA to establish that the Player terminated the Contract without just cause; and that the Player and the Second Respondent should be jointly and severally liable for the payment of a total amount of EUR 106,203.02 as compensation.

11. In its reply to the claim, the Second Respondent indicated that in January 2019 it made a request to the Claimant “in regard to the confirmation of the free status of the player” and “in connection with the try-out of professional football player”.

12. The Second Respondent alleges that on 29 January 2019, the Claimant replied to The Second Respondent’s letter stating that:

“The player had left the club without permission and the labour contract was not terminate (sic) in the prescribed procedure, also the club had proposed to reach agreement on compensation payment to the former player’s club from the player and new club. The compensation is in the amount of 45,000 (forty-five thousand) USD”.

13. Thus, on 31 January 2019, the Player and The Second Respondent signed an agreement as per which in case of a dispute in front of FIFA or the Court of Arbitration for Sport between the Player and The Claimant, the Second Respondent would be liable for the payment of 1% of any amount of compensation due to The Claimant and the Player 99% of the compensation thereof.

14. Subsequently, on 1 February 2019, the First and Second Respondent concluded an employment contract, valid as from 1 February 2019 until 30 November 2019. This contract was later terminated on 1 July 2019 by mutual consent.

15. Furthermore, the Second Respondent points out that:

“in clause 37 the claimer states that during the contract period the salary in the amount of 156,723.86 BYN was paid to the player from [The Claimant]. However, [the player] had received 134,000.73 BYN in actual fact according to reference No. 63 dated 16.07.2019. Consequently, the income amount received by [the player] is EUR 50,587.3 not EUR 59,165.64 as stated by the claimer. The claimer’s claims for recovery of the additional compensation in the amount of 52,206.41 EUR in the connection with contract termination during the protected period copy the claim for recovery of additional compensation, which [the player] should pay in the accordance with sport specific criteria, which is EUR 52,206.41. In this regard, the claimant’s demand for the recovery of EUR 52,206.41 in compensation for contract termination during the protected period is unreasonable”.

16. The Second Respondent also claims that the Regulations of the Belarussian Football Association are applicable to the case at hand and the latter provide for the subsidiary liability of the new club for the payment of compensation, and not for several and joint liability as the FIFA Regulations.

17. Even though the First Respondent was invited to provide his position to FIFA, he failed to submit a reply.

II. Considerations of the DRC Judge

1. First of all, the DRC Judge analysed whether it was competent to deal with the case at hand. In this respect, it referred to 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”), as well as to the fact that the present matter was submitted to FIFA on 21 April 2020 and submitted for decision on 18 November 2020. Taking into account the wording of art. 21 of June 2020 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. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 2 in combination with art. 22 of the Regulations on the Status and Transfer of Players, (edition October 2020) the DRC Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Colombian player, a Belarusian club and a Kazakh club.

3. In continuation, the DRC Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition October 2020), and considering that the present claim was lodged on 10 September 2020, the March 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. With the above having been established, the DRC Judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. However, the DRC Judge emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. Within this context, the DRC Judge noted that it is uncontested that the matter is of an international dimension and that the Parties do no contest FIFA’s competence thereof.

6. However, due to the unclear wording of the Contract and the role of the First Respondent when employed by the Claimant, the DRC Judge scrutinised the Contract in order to assess if the First Respondent shall be deemed as a “player” as required by art. 6 par. 1 of the Procedural Rules.

7. After careful consideration, the DRC Judge point to the fact that the Contract stipulates that the First Respondent was employed in the “position of a sportsman-instructor of 16th tariff category in staff of the football team”.

8. Furthermore, the DRC Judge observed the wording of the Contract with regard to the Player´s duties which stipulates that the First Respondent “is obliged to, by instructions of the employer, the head coach and (or) coaches of the team, do recreation and training centres and take part in all football games, performances, competition, training assemblies, gatherings, probation periods, meetings, conferences, debriefing of the team games and other sports, training and rehabilitation events conducted by the employer”.

9. As a result of the above, the DRC Judge concluded that whilst there is no clear mention of the First Respondent as a “player”, the description of the First Respondent’s duties with the Claimant leaves no doubt that it shall be understood in the case at hand that for all intents and purposes the parties intended to conclude an employment contract between a football player a football club. Therefore, the DRC Judge decided that the claim is admissible.

10. Once the above had been established, the DRC Judge proceed to analyse the facts and evidence of the case.

11. According to the description of the facts and the relevant documentation provided by the parties, the DRC Judge acknowledged that the following important facts are admitted and/or remain uncontested:

a. On 19 August 2018, the Player left the discipline of the Claimant.

b. On 14 December 2018, the Claimant dismissed the Player due to his alleged unjustified absence.

c. On 1 February 2019, the First and Second Respondent concluded an employment contract.

d. On 23 August 2019, the Claimant contacted the First and Second Respondent requesting the payment of compensation.

e. On 18 October 2019, the Player replied to the Claimant:

i. stating he was orally informed that he did not need to return to the club; and,

ii. asking for a clarification as to the reasons for the termination of the contract and rejecting the termination of the contract;

f. On 21 April 2020, the Claimant lodged a claim at FIFA against the First and Second Respondent requesting the payment of compensation for breach of contract without just cause.

12. From the aforementioned facts, the DRC Judge particularly noted that whilst the Player left the Claimant on 19 August 2018, as for the evidence provided, the Claimant never requested his return or warned him about his unauthorised absence. The DRC Judge further noted that four months later, the Claimant directly and ex parte terminated the Contract.

13. The next point acknowledged by the DRC Judge was that the Claimant contacted the First and the Second Respondent more than a year after his departure requesting compensation.

14. Moreover, in spite of the Player’s request for clarification in October 2019, as per the documentation on file, the Claimant failed to engage in any discussion with the Respondents and the Claimant’s next reaction was to lodge a claim at FIFA, six months after such letter and one year and eight months after the Player’s departure.

15. Based on the foregoing and bearing in mind the ultima ratio nature of the unilateral termination, the DRC Judge deemed that the Claimant tacitly agreed to the Player’s departure and also did not provide any explanation as to his allegation to have been told not to re-join the discipline of the Claimant.

16. In view of all the above, the DRC Judge concluded that the Contract was tacitly and mutually terminated by the parties and decided that the Claimant’s claim shall be rejected.

III. Decision of the DRC Judge

1. The claim of the Claimant, FC Shakhtyor Soligorsk, is admissible.

2. The claim of the Claimant is rejected.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

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