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 13 January 2021

Decision of the

DRC Judge

passed in Zurich, Switzerland, on 13 January 2021,

regarding an employment-related dispute concerning the player Alan MARTIN

BY:

Jon Newman (USA), DRC Judge

CLAIMANT:

ALAN MARTIN, Gibraltar

Represented by Mr. Andrew Price

RESPONDENT:

GLOBAL FC, Philippines

I. FACTS

1. On 20 January 2020, the Claimant and the Respondent concluded an employment agreement (hereinafter: the contract), valid between 20 January 2020 and 20 January 2022, according to which the Claimant was entitled to receive “a minimum salary of GBP 105,000 over a 3 year period”, i.e. GBP 35,000 per year.“.

2. Moreover, according to the contract, the Claimant was also entitled to “return airfares and accommodation”.

3. The Claimant explains that in January and February 2020, the Respondent repeatedly tried to change the travel arrangements with the Claimant “for his initial attendance at the premises of the club”. According to the Claimant, on one occasion the Respondent indicated that it would arrange a wire transfer to a Western Union account, in order to provide the Claimant with money to cover his travel expenses, however the Claimant never received such amount.

4. On 21 May 2020, the Claimant put the Respondent in default, asking for the payment of the 4 monthly salaries that remained outstanding until that day.

5. In reply to said default letter, the Respondent offered the Claimant a settlement agreement, based on which the parties would agree to mutually terminate the contract as per 20 April 2020 and based on which the Claimant would be entitled to a total amount of GBP 24,000, which settlement agreement was not accepted by the Claimant.

6. On an unspecified date, the Claimant reiterated the contents of his default letter dated 21 May 2020, and pointed out that would the Respondent not “settle matters”, or he would “serve legal notice” on 15 July 2020.

7. On 15 July 2020, after not having heard from the Respondent, the Claimant unilaterally terminated the contract with the Respondent with immediate effect, based on art. 14bis of the FIFA Regulations.

8. On 19 October 2020, the Claimant lodged a claim against the Respondent, claiming the following amounts:

- GBP 14,583 as outstanding salaries for the months of February, March, April, May and June 2020, as well as 5% interest p.a. as from the due dates until the date of termination;

- GBP 90,417 as residual value of the contract in the period between July 2020 and January 2024;

- GBP 35,000 as additional compensation, based on the specificity of the sport;

- GBP 2,000 as legal costs.

9. Despite having been invited do so, the Respondent failed to reply to the Claimant’s claim.

10. On 12 July 2020, the Claimant signed a new contract with the Gibraltar club FC Bruno Magpies, valid for the 2020/2021 and 2021/2022 season, according to which he was entitled to a monthly salary of GBP 1,250 for the 2020/2021 season and a monthly salary of GBP 1,400 for the season 2021/2022. For the overlapping period, this corresponds to GBP 31,800.

II. CONSIDERATIONS OF THE DRC JUDGE

1. First of all, the DRC Judge (hereinafter also referred to as DRC judge) 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 DRC Judge 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 DRC Judge 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 involves a Japanese player and a Philippine club.

3. In continuation, the DRC Judge analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the DRC Judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering the date when the claim was lodged, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the DRC Judge 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 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. First of all, the DRC judge acknowledged that, on 20 January 2020, the Claimant and the Respondent had concluded an employment contract valid as from 20 January 2020 and 20 January 2022, based on which the Claimant was entitled to a salary of GBP 35,000 per year.

6. The DRC judge further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the total amount of GBP 142,000, asserting that the Respondent had not fulfilled its contractual obligations towards him. More specifically, the Claimant indicated that the Respondent had not fulfilled its obligation to pay him his monthly salaries for the period between February and June 2020, and that as a result, he unilaterally terminated the contract with the Respondent on 15 July 2020.

7. Subsequently, the DRC judge noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the DRC judge was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

9. In this context, the DRC judge acknowledged that it had to examine whether the reasons put forward by the Claimant could justify the conclusion that the termination of the contract in the present matter was made by the Claimant with just cause.

10. In this respect, the DRC judge was eager to emphasise that from the information in the file, it turned out that the Respondent – in reply to the Claimant’s default letter dated 21 May 2020 by means of which the Claimant gave a 15 days’ deadline to remedy the default – offered the Claimant in May 2020 a settlement agreement, by means of which the parties would mutually agree to terminate the contract. What is more, the DRC judge noted that the Respondent allegedly failed to pay the Claimant his monthly salaries for the period between February and June 2020.

11. Recalling the provisions set out in art. 14bis par. 1 according to which in the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s), the DRC judge concluded that the Claimant had just cause to unilaterally terminate the contract on 15 July 2020. Consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause.

12. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant.

13. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”.

14. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination, i.e. the amount of GBP 14,583, consisting of the five unpaid salaries for the period between February and June 2020.

15. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of GBP 14,583 as of the respective due dates.

16. In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract.

17. In this context, the DRC judge outlined that, in accordance with said provision, 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. In this regard, the DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

19. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the DRC judge took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the DRC judge pointed out that at the time of the termination of the employment contract on 15 July 2020, the contract and the supplementary agreement would still run until 20 January 2022. Consequently, taking into account the financial terms of the contract as well as the claim of the Claimant, the DRC judge concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to GBP 90,417 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract

20. In continuation, the DRC judge remarked that the Claimant informed FIFA that on 12 July 2020, he had signed a new contract with the Gibraltar club FC Bruno Magpies, valid for the 2020/2021 and 2021/2022 season. According to said contract, he was entitled to a monthly salary of GBP 1,250 for the 2020/2021 season and a monthly salary of GBP 1,400 for the season 2021/2022. For the overlapping period, this corresponds to GBP 31,800. As a result, the mitigated compensation amounts to GBP 58,617.

21. Subsequently, the DRC judge turned his attention to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an additional compensation of three monthly salaries, subject to the early termination of the contract being due to overdue payables. In case of egregious circumstances, the additional compensation may be increased up to a maximum of six monthly salaries, whereby the overall compensation may never exceed the rest value of the prematurely terminated contract.

22. With the above in mind, the DRC judge decided to award the Claimant additional compensation corresponding to three monthly salaries, i.e. GP 8,750, in accordance with the above-mentioned provision.

23. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of GBP 67,367 to the Claimant as compensation for breach of contract without just case, which is considered by the DRC judge to be a reasonable and justified amount as compensation.

24. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of GBP 67,367 as of 19 October 2020 until the date of effective payment.

25. Finally, the Claimant’s request for legal costs is rejected, in line with the longstanding jurisprudence of the Chamber.

26. The DRC judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

27. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with his 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 DRC judge 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 DRC judge 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 DRC judge 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, Andrew Price, is partially accepted.

2. The Respondent, Global FC, has to pay to the Claimant, the following amounts:

- GBP 14,583 as outstanding remuneration plus 5% interest p.a. until the effective date of payment as follows:

o on the amount of GBP 2,916.66 as from 1 March 2020;

o on the amount of GBP 2,916.66 as from 1 April 2020;

o on the amount of GBP 2,916.66 as from 1 May 2020;

o on the amount of GBP 2,916.66 as from 1 June 2020;

o on the amount of GBP 2,916.66 as from 1 July 2020.

- GBP 67,367 as compensation for breach of contract without just cause plus 5% interest p.a. as from 19 October 2020 until the date of effective payment.

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 final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Respondent to FIFA (cf. note relating to the payment of the procedural costs below).

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).

CONTACT INFORMATION:

Fédération Internationale de Football Association

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

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777