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 15 July 2016

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 15 July 2016,

by Theo van Seggelen (Netherlands), DRC judge

on the matter between the player,

Player A, country B

as Claimant

and the club,

Club C, formerly known as Club D, country E

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 13 August 2012, the player from country B, Player A (hereinafter: the Claimant), concluded an employment contract (hereinafter: the contract) with the club from country E, Club C, formerly known as Club D (hereinafter: the Respondent), valid as from 18 August 2012 until the end of the season 2012-2013.

2. According to the second clause of the contract, the Claimant was entitled to the total amount of USD 32,000, payable every 30 days in 8 instalments of USD 4,000.

3. On 13 August 2013, the Claimant lodged a claim before FIFA against the Respondent, and requested the payment of the following amounts:

- USD 12,000, corresponding to outstanding salaries as from September until November 2012, plus 5% interest “as from the maturity date of every and each missing obligation”;

- USD 4,000, corresponding to the rent amount, from August 2012 until November 2012 (i.e. 4 months);

- USD 4,200, corresponding to three flight tickets (i.e. 1,400*3);

- USD 20,000, as compensation for breach of contract without just cause, plus 5% interest p.a. as from 30 November 2012, corresponding to the residual value of the contract (i.e. until May 2013).

4. In addition, the Claimant requested the payment of undetermined moral damages as a result of not receiving his salaries.

5. Furthermore, the Claimant requested the imposition of sporting sanctions on the Respondent.

6. According to the Claimant, the Respondent failed to pay his entire salary. In this regard, he explained that he requested the payment of his salaries several times to the Respondent, but the latter never acted in order to solve this situation.

7. In view of the above, the Claimant stated that he sent a letter to the FA of country E on 5 November 2012, by means of which he requested his “release” (in Spanish, “solvencia de oficio”) in order to be able to work for another club.

8. Despite being invited to do so, the Respondent failed to reply to the claim lodged by the Claimant.

9. On 4 June 2014, the Football Association of country E confirmed that the Respondent changed its name for the season 2013-2014 to “Club F”.

10. Subsequently, on 14 March 2016 the Football Association of country E informed that the club “Club F” transferred its sporting rights to Club C. In particular, the Football Association of country E confirmed that Club C overtook all the rights and obligations of Club D, and that consequently, it must be considered as its legal successor.

11. Moreover, the Claimant informed FIFA that he concluded a contract with the club from country G, Club H, valid as from 1 January 2013 until 30 May 2013, which was terminated on 26 February 2013.

12. According to the information available in the Transfer Matching System (TMS), the Claimant was entitled to a remuneration in the amount of 40,000 per month to be paid by Club H.

13. In reference to said contract, the Claimant explained that he had no copy of it, and underlined that he “has no burden of proof regarding his employment situation after the breach of the contract” and that “in fact, according to what indicates FIFA’s jurisprudence, this would only serve to reduce the amount of the compensation due by the Respondent to [him]”. For this reason, the Claimant expressed his will to “impugn the deduction that FIFA decision-making bodies would eventually do as from” his contractual situation following the termination of the contract.

14. In addition, and according to the information available in the TMS, the 2012-2013 season in country E concluded on 30 June 2013.

II. Considerations of the DRC judge

1. First of all, 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 13 August 2013. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2012, 2014 and 2015 editions of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2016), the DRC judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country E.

3. In this regard, the DRC judge wished to clarify the status of the Respondent and its standing in the proceedings. In particular, the DRC judge took note that, on 14 March 2016, the Football Association of country E confirmed that the Club C overtook all the rights and obligations of Club D, and that consequently, it must be considered as its legal successor. Consequently, the DRC judge established that the Respondent, Club C, formerly known as Club D, has legal standing to be considered as such.

4. The competence of the DRC judge having been established, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2014, 2015 and 2016), and considering that the present matter was submitted to FIFA on 13 August 2013, the 2012 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

5. Having established the foregoing, and entering into the substance of the matter, 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 for the assessment of the matter at hand.

6. In this respect, the DRC judge acknowledged that the parties to the dispute had signed a valid employment contract on 13 August 2012, valid until the end of the season 2012-2013, i.e. until 30 June 2013 (cf. point I. 14 above), in accordance with which the Respondent would pay the Claimant a monthly salary in the amount of USD 4,000.

7. Subsequently, the DRC judge noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the employment contract with just cause on 5 November 2012, since the Respondent allegedly failed to pay the Claimant’s remuneration. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract.

8. Moreover, 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.

9. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it 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.

10. Within this context, the DRC judge took note that the Claimant considered the contract as terminated with just cause as from 5 November 2012, on the grounds that the Respondent apparently had a debt of USD 12,000 towards him, corresponding to three months of outstanding salaries.

11. In this respect, the DRC judge was of the opinion that, in accordance with its long-standing and well-established jurisprudence, unless otherwise stipulated by the parties, salaries are due at the last day of each month.

12. In view of the above, the DRC judge considered that, in particular, the outstanding salaries requested by the Claimant, respectively fell due on 30 September 2012, 31 October 2012 and 30 November 2012.

13. Consequently, In this regard, the DRC judge concluded that the payment for the month of November 2012 had clearly not fallen due yet on the date of the alleged termination, i.e. 5 November 2012.

14. In this respect, the DRC judge wished to emphasize that, according to the principle of contractual stability, the unilateral termination of a contract must be considered as an absolute last resort, where, given the particularities of the situation at stake, it could not be expected that one of the parties could reasonably continue to be bound by the contractual relationship. In what concerns financial obligations, one of the consequences of the aforementioned principle is that only a persistent and substantial non-compliance of these obligations could justify the unilateral termination of a contract.

15. Moreover, taking into account the documentation presented by the Claimant and in accordance with art. 12 par. 3 of the Procedural Rules, the DRC judge observed that the Claimant failed to present sufficient evidence to prove that it previously put the Respondent in default by means of, for example, a default notice. Therefore, the DRC judge understood that the Claimant did not provide its counterparty with an opportunity to remedy the alleged breach.

16. In view of the above, the DRC judge was of the opinion that the Claimant did not have just cause to prematurely terminate the employment contract with the Respondent, since there would have been other measures to be taken, in order to find a remedy to the situation which is at the basis of the termination of the employment contract by the Claimant.

17. Notwithstanding the above, the DRC judge observed that, considering the lack of evidence to the contrary, the Respondent had failed to pay the salary of the Claimant for the months of September 2012 and October 2012, i.e. USD 8,000, in accordance with the contract.

18. As a consequence, the DRC judge established that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the contract concluded with the Claimant and, consequently, is to be held liable to pay the outstanding amount of USD 8,000 to the Claimant in relation to the referred salaries of September 2012 and October 2012.

19. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on said amounts as of the day following the day on which said instalments fell due.

20. Moreover, as to the Claimant’s petition on the reimbursement of rent expenses and flights tickets, the DRC judge decided to reject said requests for a lack of contractual basis, since both aspects were not stipulated in the contract concluded by the parties.

21. Subsequently, the DRC judge analysed the request of the Claimant corresponding to compensation for moral damages. In this regard, the DRC judge deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered.

22. Finally, the DRC judge concluded his deliberations by rejecting any further claim lodged by the parties.

III. Decision of the DRC judge

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

2. The Respondent, Club C, formerly known as Club D, 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 8,000, plus 5% interest p.a. until the date of effective payment, as follows:

a. 5% p.a. as of 1 October 2012 on the amount of USD 4,000;

b. 5% p.a. as of 1 November 2012 on the amount of USD 4,000.

3. In the event that the amount foreseen in point 2. plus interest is not paid within the stated time limit by the Respondent, the matter shall be submitted, upon request, to the FIFA 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 under point 2. is to be made and to notify the DRC judge of every payment received.

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, 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 (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the DRC judge:

Marco Villiger

Deputy Secretary General

Enclosed: CAS directives