F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 20 April 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 20 April 2017,

in the following composition:

Geoff Thompson (England), Chairman

Mohamed Mecherara (Algeria), member

Leonardo Grosso (Italy), member

on the claim presented by the player,

Player A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. According to the player of Country B, Player A (hereinafter: player or Claimant), on 15 February 2016, he and the club of Country D, Club C (hereinafter: club or Respondent), signed an employment contract (hereinafter: contract) valid as from 1 February 2016 until 31 December 2016.

2. According to the contract, the club undertook to pay the player a monthly salary of USD 15,000 payable on the last day of each month.

3. The contract contains the following clause: “In case of interruption of the collaboration by the club or if the club breaches the contract and sacks the “coach” in advance within the term of the contract, the club must compensate an amount equivalent to – two (2) months’ salary as severance compensation to the player. If the Club terminates agreement prior to the end date due to breach in terms of contract by the player, the breach must be reported in writing to the player within 10 days of occurrence”.

4. On 29 March 2016, the player sent a letter to the club requesting written approval to return to Country B to seek medical advice regarding his injury, setting a time limit until 1 April 2016 for the club to reply.

5. On 4 April 2016, the player terminated the contract by means of a letter addressed to the club, stating that his previous letter remained unanswered and that the club breached the contract by not allowing him to seek medical advice in Country B. In said letter, the player argued that the club offered the player a mutual termination of the contract and therefore lost its interest in the player’s services.

6. On 20 April 2016, the club sent a letter to the player requesting him to return to the club before 27 April 2016 in order “to start curing injuries process”.

7. On 27 April 2016, the player replied to the club in writing, referring to his previous correspondence, stating that he has no reason to return to Country D. Furthermore, he requested payment of his outstanding receivables plus compensation from the club.

8. On 30 April 2016, the club sent a letter to the player, confirming its willingness to work with the player after his recovery and requesting him to return until 5 May 2016.

9. On 10 May 2016, the player sent a letter to the club, reiterating his position.

10. On 24 May 2016, the player lodged a claim in front of FIFA against the club maintaining that the latter is to be held liable for the early termination of the contract and requested to be awarded payment of the following monies:

- USD 9,318.45 corresponding to outstanding remuneration;

- USD 133,000 as compensation for breach of contract corresponding to the residual value of the contract.

In addition, the player requested 5% interest p.a. on these amounts.

11. In his arguments, the player maintained that he only received an incomplete version of the employment contract from the club, despite having requested a complete version. In this regard, he submitted his version of the contract as well as match reports and a printout of the official webpage of the club, listing him as a player of the Respondent.

12. Moreover, the player held that he terminated the contract with just cause, since the club did not allow him to return to Country B for a second medical opinion and due to the fact that the club lost its interest in the player’s services, which was indicated by the club’s offer for a mutual termination of the contract.

13. In this regard, the player argued that he sustained an injury on 16 March 2016 during a league match.

14. The player held that he had the right to seek a second medical opinion and, in this respect, he refererred to FIFA circular no. 1171, dated 24 November 2008, regarding “Professional Football Player Contract Minimum Requirements”, art. 5.5 of which reads as follows: “The Player has a right of a second opinion by an independent medical specialist if he contests the opinion of the club’s specialist. […]”.

15. Furthermore, the player argued that he only received the total amount of USD 22,681.53 as salaries up to the termination of the contract. Therefore, he claimed that parts of his salary for March 2016, in the amount of USD 7,318.47 and the salary for 4 days in April 2016 in the amount of USD 2,000, remained outstanding.

16. Moreover, the player claimed compensation for breach of contract in the amount of USD 133,000, corresponding to the salary for 26 days in April 2016, i.e. USD 13,000, and the salaries as of May 2016 until December 2016.

17. According to the information contained in the Transfer Matching System (TMS), the player remained unemployed during the relevant period until 31 December 2016.

18. Despite having been invited to do so, the club has not submitted its position regarding the player’s claim.

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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 24 May 2016. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are 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 and par. 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2016) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player of Country B and a club of Country D.

3. Furthermore, the Chamber 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 Players (edition 2016), and considering that the present claim was lodged on 24 May 2016, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. First of all, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that a valid and binding employment contract was concluded between the parties and that he had terminated said employment contract with just cause on 4 April 2016 since the club did not allow him to return to his home country for a second medical opinion. In this respect, the Claimant submits to have only received a part of the salary for March 2016 at the time he terminated the employment contract.

Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract.

6. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. Consequently, the Chamber deemed that the Respondent had renounced to its right of defence and, thus, had accepted the allegations of the Claimant.

7. As a consequence of the aforementioned consideration, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

8. In this respect, and since the player submitted an incomplete version of the contract, the Chamber first needed to establish if a valid and binding employment contract was concluded by the parties. In this regard, the members of the Chamber took into account that a complete version of the employment contract was available in the Transfer Matching System (TMS).

9. Taking into consideration the fact that the Respondent did not contest the Claimant’s argumentation and since the documentation submitted by the player matches the information contained in the TMS, the DRC concluded that a valid and binding employment contract was signed by the parties, valid as from 1 February 2016 until 31 December 2016. In accordance with said contract, the club undertook to pay the Claimant a monthly salary in the amount of USD 15,000.

10. Having said this, the DRC acknowledged that the central issue in the matter at stake was to determine as to whether the contract was terminated by the Claimant with or without just cause and to decide on the consequences thereof.

11. In doing so, the Chamber recalled that it has remained undisputed that the Claimant terminated the contract on 4 April 2016 by means of a letter, alleging that he had just cause since the club did not give him the requested permission to return to his home country for a second medical opinion and since the club lost its interest in his services.

12. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria, which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfillment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

13. In view of the above, the Chamber observed that the player requested permission to leave on 29 March 2016, which remained unanswered by the club.

14. Furthermore, the DRC noted that the Claimant did not submit any documentation supporting his allegation that the club, in fact, lost its interest in his services and he failed to submit any proof of the club’s alleged offer to mutually terminate the contract. Notwithstanding the above, in any case, an offer for a mutual termination of a contract cannot per se be considered as proof that a club lost its interest in the player’s services.

15. What is more, at a later stage, the club requested the player to return. Moreover, the members of the Chamber took note that a part of the player’s salary of March 2016 remained outstanding.

16. In this respect, the DRC found that more lenient measures could have been taken by the Claimant before terminating the contract. In consideration that the Claimant had not presented valid reasons to justify such termination as an ultima ratio measure, the Chamber decided that the Claimant had no just cause to unilaterally terminate the employment relationship between the parties and, therefore, concluded that the Claimant had terminated the employment contract without just cause on 4 April 2016.

17. On account of the above, the Chamber decided to reject the player’s claim for compensation for breach of contract.

18. In continuation, the DRC acknowledged that, in accordance with the employment contract, the Respondent was obliged to pay to the Claimant a monthly remuneration in the amount of USD 15,000, payable on the last day of each month.

19. In this respect, the Chamber took into consideration that it remained uncontested that the Respondent failed to pay the Claimant’s remuneration in the total amount of USD 9,318.45, corresponding to parts of his salary for March 2016, i.e. USD 7,318.47 and the salary for 4 days in April 2016, i.e. USD 2,000. Consequently, the Claimant requested to be awarded with the payment of the total amount of USD 9,318.45.

20. Taking into account the documentation presented by the Claimant in support of his petition, the Chamber concluded that the Claimant had substantiated his claim pertaining to outstanding remuneration with sufficient documentary evidence.

21. On account of the aforementioned considerations, the members of the Chamber established that the Respondent failed to remit a part of the remuneration in the total amount of USD 9,318.45 up to the termination of the Claimant.

22. Consequently, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of USD 9,318.45.

23. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD 9,318.45 as from 4 April 2016 until the date of effective payment.

24. Finally, the DRC concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 9,318.45 plus 5% interest p.a. as of 4 April 2016 until the date of effective payment.

3. In the event that the aforementioned amount and interest due to the Claimant are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

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Note relating to the motivated decision (legal remedy):

According to article 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

Avenue de Beaumont 2

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:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives