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 16 July 2020

Decision of the

Dispute Resolution Chamber

Passed on 16 July 2020,

regarding an employment-related dispute concerning the player A

COMPOSITION:

Geoff Thompson (England), Chairman

Michele Colucci (Italy), member

Abu Nayeem Shohag (Bangladesh), member

CLAIMANT / COUNTER-RESPONDENT:

A, Country A

Represented by

RESPONDENT / COUNTER-CLAIMANT:

B, Country B

Represented by

I. FACTS

1. According to the player, he gave an authorisation to “Mr xxx” (the agent) to represent him in his negotiations with the respondent.

2. In particular, the player attached different versions of the contract providing their signature boxes.

3. Following item 2 of the contract, the period of validity is as from 1 August 2019 until 30 May 2020 (i.e. 11 Months).

4. Item 4 of the contract established that the player would be entitled to the following:

1- An amount of US $ 75,000 as signing bonus

2- Pay a monthly wage of US$ 6.818 to the second party at the end of each calendar month, including transportation and accommodation

3- Housing allowance: PROVIDE BY CLUB.

4- Transportation: PROVIDE BY CLUB.

5- A bonus of US$ 15.000 IF the team is promoted to the xxx Professional league.

6- A bonus of$ 10.000 if the player gets the top scorers in the league

7- A bonus of$ 5.000 if the player scores more than 20 goals the season

8- Economy tickets for the family members from xx to xx

5. According to the player, the club’s president sent to his agent a copy of an employment contract signed by him via “Whatsapp Messenger”.

6. On 18 August 2019, the club’s president sent a message to the player’s agent, indicating the following:

« attendu que ni la copie signée ni l'e-mail du joueur ne nous ont été adressés et attendu que la saison sportive débute dans les prochains jours et que la période d'enregistrement estivale est sur le point de s'achever; Par conséquent, B ne peut pas attendre davantage pour engager votre joueur. Ainsi, nous vous informant que le club ne compte plus recruter le joueur A et que le contrat envoyé et signé par une seule partie est réputé nul et non avenu. »

Free translation to English :

“Whereas neither the signed copy nor the player's e-mail have been sent to us and waited until the sports season begins in the coming days and the summer registration period is about to end; Therefore, B cannot wait any longer to hire your player. Thus, we inform you that the club no longer intends to recruit the player A and that the contract sent and signed by a single party is deemed null and void. "

7. On the same date of 18 August 2019, the player’s agent replied to the aforementioned message as follows:

« Monsieur, nous vous informons qu'il ne nous a pas été demandé de fournir l'e-mail du joueur. En ce qui concerne le contrat, vous nous l'avez envoyé via l'application WhatsApp et nous vous l'avons renvoyé sur la même application après l'avoir fait signer par le joueur et vous avoir transmis tous les documents nécessaires pour l'inscription du joueur dans votre respectable club. Toutefois, vous nous avez demandé de vous envoyer ces documents par e-mail sans nous communiquer, jusqu'à ce jour, une adresse pour vous les envoyer. A chaque fois que je vous ai appelé au téléphone pour nous envoyer l'e-mail, vous nous disiez qu'un des affiliés du club allait nous l'envoyer, mais nous n'avons rien reçu de votre part.»

Free translation to English:

"Sir, we inform you that we were not asked to provide the player's email. Regarding the contract, you sent it to us via the WhatsApp application and we sent it back to you on the same application after having the player sign it and sending you all the documents necessary for registration of the player in your respectable club. However, you have asked us to send you these documents by e-mail without giving us, to date, an address to send them to you. Whenever I called you on the phone to send us the email, you told us that one of the club's affiliates was going to send it to us, but we didn't receive anything from you. ”

8. On 15 September 2019, the player’s legal representative sent a correspondence to the Football Federation of Country B, requesting its intervention.

9. According to the player, this was done in compliance with Item 9 of the contract, which established the following:

Item 9: Settlement of Disputes:

“1- The two parties shall seek solving their disputes on the enforcement of the contract by amicable ways. 2- The Dispute Resolution Chamber of the Football Federation of Country B is concerned with considering and resolving the disputes that arise between the club and player on this professional contract, implementing and interpreting it.

3- The two parties shall seek solving their disputes on Country B Arbitration for sport.”

10. However, according to the player, the Football Federation of Country B never replied to his requests and, consequently, he addressed the matter to FIFA.

11. On 1 January 2020, the player concluded an employment contract with the Country C club, C, valid for the “football season 2020”, for a monthly salary of USD 2,500, payable “in ten equal instalments”, plus a sign-un fee of USD 5,000. (i.e. from 1 January 2020 until 30 May 2020, the player would have earned USD 17,500).

12. On 25 February 2020, the player lodged a claim for breach of contract without just cause, and requested the payment of the following amounts:

- USD 75,000, as sign-in bonus;

- USD 74,998, as salaries during the duration of the contract;

- USD 10,000 as bonus and advantages for transportation.

- USD 10,000, as legal fees.

13. The club considered that the claim of the player is done in bad faith.

14. In this respect, the club explained that it did not have any direct contact with the player, but only with his alleged agent. The club acknowledged, however, that it “hugely” needed the player’s services.

15. According to the club, it sent and offer to the player on 22 July 2020, and the player had 28 days to accept it, which he failed to do.

16. In addition, the club stated that the player was negotiating with other clubs in Country D and in Country E during this period, and enclosed a “Whatsapp” message from his alleged agent, stating the following:

“I send A for Country D this week

I tell A I have ofher for him in Country D team and big team in Country E Send another player for your team and god bless you team this season”

17. As a result, the club considered that there was no contractual relationship between the parties.

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. Taking into account the wording of art. 21 of the 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 Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised 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, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the present one, which concerns a Country A player and a Country B club.

3. Nevertheless, and for the sake of completeness, the Chamber noted that, on 15 September 2019, the player’s legal representative sent a correspondence to the Football Federation of Country B, requesting its intervention and in compliance with item 9 of the contract.

4. In this respect, the Chamber carefully analyzed the documentation on file and noted that there is no indication that a decision concerning this matter was taken at the national level. In fact, the Chamber was of the firm opinion that the player’s claim before FIFA was apparently due to the fact that the player was ultimately unable to have any decision or hearing for his case in Country B.

5. As a result, the Chamber considered that, given the above, it is competent to deal with the present matter and his claim before FIFA is therefore admissible.

6. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 25 February 2020, the October 2019 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

7. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber 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.

8. In this respect, the Chamber noted that, according to the player, he signed a contract with the club valid as from 1 August 2019 until 30 May 2020 (i.e. 11 months) (cf. points

I.1 to I.4 above).

9. Subsequently, the Chamber noted that player lodged a claim for breach of contract without just cause, arguing that the club failed to execute the contract.

10. On the other hand, the Chamber observed that, for its part, the Respondent argued that it did not have any direct contact with the player, but only with his alleged agent, and that, consequently, there was no contractual relationship between the parties.

11. In view of the dissent between the parties, the Chamber considered that the first legal issue at stake is to assess whether a valid contract was concluded between the parties.

12. At this stage, the Dispute Resolution Chamber reminded the parties of the contents of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.

13. In this respect, the Chamber observed the evidence provided by the player in his claim, and particularly the signed employment contracts that were provided, as quoted in point

I.1 above.

14. In relation to said documents, the Chamber considered that it is clear that, regardless of any other issue, both parties countersigned the same employment contract. As a result, the Chamber determined that, indeed, the parties had a valid employment relationship, with a period of validity from 1 August 2019 until 30 May 2020.

15. Having established that a valid and legally binding employment contract had been in force between the parties, the Chamber went on to analyse as to whether such contract had been breached and, in the affirmative, which party is to be held liable for breach of contract.

16. In this context, the Chamber was eager to emphasize that, the Respondent did not contest the allegations of the Claimant that it had not performed any of its obligations under the employment contract and that, in fact, it merely disputed the legal validity of such contract.

17. On account of the above circumstances, the Chamber established that the pertinent employment contract was never executed due to the refusal of the Respondent to accept the player’s services without any valid reason. The Chamber concluded that such conduct clearly constitutes a breach of contract and, accordingly, decided that the Respondent has produced the premature termination without just cause of the employment contract entered into between the parties.

18. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract.

19. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of 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.

20. In application of the relevant provision, the Chamber 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.

21. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from1 August 2019 until 31 May 2020 and concluded that the Claimant would have received in total USD 143,180 (i.e. USD 75,000 as sign-on bonus and 6,818*10=USD 68,180 as salaries had the contract been executed until its expiry date.

22. In continuation, the Chamber assessed 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. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

23. In this respect, the Chamber noted that, on 1 January 2020, the player concluded an employment contract with the Country C club, C, valid for the “football season 2020”, for a monthly salary of USD 2,500, payable “in ten equal instalments”, plus a sign-un fee of USD 5,000.

24. As a result, the Chamber observed that from 1 January 2020 until 30 May 2020, the player would have earned USD 17,500.

25. In view of the above, the Chamber observed that the mitigated compensation corresponds to USD 125,680 (i.e. USD 143,180- USD 17,500).

26. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of USD 125,680 to the Claimant as compensation for breach of contract, which it considered as a reasonable compensation in view of the applicable contract, regulations and jurisprudence.

27. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

28. In this regard, the Dispute Resolution 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.

29. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

30. Finally, the Dispute Resolution 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, A, is partially accepted.

2. The Respondent, B, has to pay to the Claimant the amount of USD 125,680.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amounts.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due, plus interest as established above are not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the

due amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

7. The decision is pronounced free of costs (cf. art. 18 par. 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

For the Dispute Resolution Chamber:

Chief Legal & Compliance Officer

Emilio García Silvero

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).

CONTACT INFORMATION:

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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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