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 18 May 2017
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 May 2017,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
John Bramhall (England), member
Takuya Yamazaki (Japan), member
Mohamed Al Saikhan (Saudi Arabia), member
Wouter Lambrecht (Belgium), 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 arisen between the parties
I. Facts of the case
1. On 1 January 2014, the Player of Country B, Player A (hereinafter: the Claimant) and Club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the first contract), valid as from 1 January 2014 until 31 December 2015.
2. In accordance with the first contract, the Claimant was entitled to the following remuneration:
2014 season:
- USD 90,000 payable in twelve monthly instalments of USD 7,500 payable by no later than the 10th day of the following month;
- USD 40,000 as down payment due on 30 January 2014;
- USD 30,000 as down payment due on 30 March 2014;
2015 season:
- USD 90,000 payable in twelve monthly instalments of USD 7,500 payable by no later than the 10th day of the following month;
- USD 40,000 as down payment due on 10 January 2015;
- USD 30,000 as down payment due on 10 May 2015.
3. On 26 December 2016, the Claimant lodged a claim against the Respondent for breach of contract requesting the following amounts:
USD 100,000, plus 5% interest as from each respective due date, as outstanding remuneration, corresponding to the down payments due on 30 March 2014, 10 January 2015 and 10 May 2015 respectively;
USD 60,000, plus 5% interest as from 23 December 2016, as compensation corresponding to the residual value of the contract from May until December 2015.
4. In his claim, the Claimant alleges that on several occasions, he put verbally the Respondent in default of paying his dues; however to no avail. Therefore, the Claimant explains that on 27 May 2015, considering that the Respondent had failed to pay him USD 100,000 corresponding to more than twelve monthly salaries, he decided to leave the country, thereby de facto terminating the contract.
5. In its reply to the claim, the Respondent asserts that after signing the first contract on 1 January 2014, the Claimant informed it that he also held the nationality of Country D. Therefore, the Respondent sustains that on 9 January 2014, the parties decided to sign a new employment contract based on the nationality of Country D of the Claimant, which was subsequently registered at the Football Federation of Country D. In support of his assertion, the Respondent submitted a copy of an employment contract dated 9 January 2014 (hereinafter: the second contract) as well as an ID card and a player license where the Claimant appears to be a National of Country D.
6. In continuation, the Respondent asserts that on 29 April 2015, the Disciplinary Council of the Football Federation of Country D rendered a decision cancelling the Claimant’s license, suspending him for twelve months and imposing him a fine of 50,000 due to the “fraud in the registration process”. In this respect, the Respondent points out that the Claimant misled it and presented it fake documents in order to be registered as a National of Country D. In view of the above, the Respondent asserts that the parties agreed to terminate the employment relationship and submitted, in support of its allegation, a copy of a termination agreement dated 1 May 2015 which provides, inter alia, that “[t]he parties have decided that with this termination, all accounts are settled between them, and there is nothing to claim about in the future”. Nevertheless, the Respondent contends that after receiving the official notifications of the decision on 28 May 2015 as well as the confirmation of the cancellation of the Claimants ID card of Country D on 29 May 2015, it decided to unilaterally terminate the employment contract with “fair cause” on 10 June 2015.
7. In his replica, the Claimant stresses that the sole nationality he has ever held is the one of Country B and firmly denies having signed the second contract. In this regard, the Claimant points out that the signatures are contained on a page separate from the rest of the contract. Furthermore, the Claimant outlines that the second contract indicates 14 August 2016 as expiry date of the Claimant’s ID card whereas the ID card submitted by the Respondent expires on 23 June 2016. The Claimant finds it a strange coincidence when one knows that his passport of Country B, i.e. the passport used in order to register him in TMS, expires on 14 August 2018. In the same vein, the Claimant contests the authenticity of the player license presented by the Respondent. In this respect, the Claimant highlights that only the Respondent would have had an interest in him being registered as a National of Country D.
8. Equally, the Claimant also denies having signed the termination agreement submitted by the Respondent.
9. In continuation, the Claimant alleges that he has never been informed of the disciplinary proceedings pending against him.
10. In its final comments, the Respondent emphasises that the Claimant played for one year and three months with a license of Country D.
11. Furthermore, the Respondent alleges that the Claimant was aware of the disciplinary procedure opened against him. In particular, the Respondent highlights that the Claimant sent an explanatory, which is enclosed to its submission, regarding his name to the Disciplinary Council of the Football Federation of Country D and that the decision of said body indicates that the Claimant appeared in the proceedings.
12. In spite of having been invited to do so, the Respondent failed to submit the original versions of the second contract and of the termination agreement.
13. Upon request, the Claimant informed FIFA that he did not enter into any new employment contract after the termination of his contract with the Respondent.
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. In this respect, it took note that the present matter was submitted to FIFA on 26 December 2016. Consequently, the 2015 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. article 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 in conjunction 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 26 December 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 members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. However, the Chamber emphasised 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. In this respect, the Chamber recalled that, the Claimant and the Respondent signed an employment contract valid as from 1 January 2014 until 31 December 2015. In this regard, the Chamber emphasised that the contracts submitted by both parties contain the exact same organisational and financial terms.
6. In continuation, the Chamber took note of the Claimant’s arguments which considers that he had just cause to leave the country and terminate the contract on 27 May 2015 since the Respondent had failed to pay him USD 100,000, corresponding to the down payments due on 30 March 2014, 10 January 2015 and 10 May 2015.
7. Subsequently, the Chamber noted that the Respondent asserts that on 1 May 2015, the parties signed a termination agreement by means of which they waived their claims towards each other. Furthermore, the DRC observed that the Respondent stresses that a sanction was imposed on the Claimant due to its fraudulent behaviour and that it was therefore authorised not to comply with its financial obligations and to terminate the contract on 10 June 2015.
8. Having established the above, the Chamber deemed that the underlying issue in this dispute was to determine when and whether the employment contract had been unilaterally terminated with or without just cause by either of the parties.
9. At this stage, the Chamber deemed it appropriate to shortly recall the relevant events in the present matter according to the documentary evidence provided by either party as well as the respective allegations which have remained uncontested by the opposing party.
10. Along those lines, the Chamber referred to 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 respective burden of proof. Having said this, the Chamber emphasised that the Claimant argues that his signature contained on the copy of the termination agreement dated 1 May 2015 remitted by the Respondent was forged. What is more, the Respondent was unable to provide the relevant termination agreement in its original form signed by the hand of the parties.
11. At this stage, the DRC considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.
12. On account of these considerations, the Chamber held that the fact the Claimant had only submitted a copy of the disputed document was insufficient to take into consideration its content and to establish that the contractual relationship was terminated by mutual consent on 1 May 2015.
13. In this context, the DRC outlined that it is uncontested that the Claimant left Country D on 27 May 2015 and did not come back afterwards. In this regard, the Chamber deemed of utmost importance to point out that both parties stopped executing their reciprocal obligations as of that date. Consequently, the Chamber concluded that, even though the Respondent formally terminated the contractual relationship on 10 June 2015, the latter had de facto been terminated by the Claimant on 27 May 2015.
14. The Chamber then turned its attention to the question of whether the Claimant had just cause to terminate the contract on 27 May 2015. In doing so, the Chamber outlined that the Respondent does not contest that the claimed amounts fell due nor that the player had put it in default orally multiple times, but merely refers to the termination agreement allegedly signed on 1 May 2015. In this respect, the Chamber reiterated its previous considerations regarding the lack of consideration of the termination agreement (cf. point II.10 above) and concluded that the Respondent has not provided evidence to substantiate its defence. As a consequence, the Chamber established that the Respondent had failed to pay to the Claimant the claimed down payments in the amount of USD 100,000.
15. Having in mind the previous considerations, the Chamber considered that the Respondent had seriously neglected its contractual obligations towards the Claimant in a continuous and constant manner without any valid reason, i.e. the Respondent had failed to remunerate the Claimant for a substantial period of time. Therefore, the Chamber considered that the Respondent was found to be in breach of the employment contract and that the breach was of such seriousness that, in line with the Chamber’s long-standing and well-established jurisprudence, the Claimant had a just cause to unilaterally terminate the contractual relationship with the Respondent on 27 May 2015.
16. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focused its attention on the consequences of such termination.
17. Reverting to the claim for outstanding remuneration, the Chamber deemed that, having the claim been lodged on 26 December 2016 only, the part of the claim relating to outstanding remuneration falling due before 26 December 2014 must be considered barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations. Accordingly, the Chamber stressed that it could only award the remuneration that had fallen due after this date, i.e. the down payments due on 10 January 2015 and 10 May 2015.
18. Furthermore, the DRC considered that even though the Claimant’s salary for May 2015 had not formally fallen due on the date of termination, the Claimant had rendered his services to the Respondent for the month of May 2015 and therefore decided to award it to the Claimant as outstanding remuneration.
19. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. USD 77,500.
20. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. until the date of effective payment as follows:
a. 5% p.a. as of 11 January 2015 on the amount of USD 40,000;
b. 5% p.a. as of 11 May 2015 on the amount of USD 30,000;
c. 5% p.a. as of 27 May 2015 on the amount of USD 7,500.
21. In continuation, having established that the Respondent is to be held liable for the termination of the contract with just cause by the Claimant, the Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the Respondent would, in principle, be liable to pay compensation to the Claimant.
22. In this respect, the Chamber took note that on 29 April 2015, the Disciplinary Council of the Football Federation of Country D rendered a decision, suspending the Claimant for a period of twelve months. In particular, the members of the Chamber emphasised that the decision was officially notified on 28 May 2015, date on which the sanction became effective.
23. In particular, the Chamber was eager to emphasise that in spite of being aware of the content of the decision, the Claimant does not appear to have formally challenged it.
24. In light of the considerations mentioned above, in particular the fact that, due to the sanction imposed on him, the Claimant would have been unable to render services to the Respondent until the original expiry of the contract, the Chamber came to the conclusion that the Claimant could not be entitled to receive compensation in the case at hand. The members of the Chamber highlighted that this is in line with existing jurisprudence of the Chamber.
25. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is partially accepted insofar as it is admissible.
2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 77,500 plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 11 January 2015 on the amount of USD 40,000;
b. 5% p.a. as of 11 May 2015 on the amount of USD 30,000;
c. 5% p.a. as of 27 May 2015 on the amount of USD 7,500.
3. In the event that the abovementioned amount plus interest is not paid within the stated time limit, the present 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 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 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
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