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 matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 30 May 2016, the Player of Country B, Player A (hereinafter: the Claimant), concluded an “amateur contract” (hereinafter: the contract) with the Club of Country D, Club C (hereinafter: the Respondent), valid as from the date of signature “until the end of the 2016/2017 season.” (i.e. until 30 June 2017).

2. According to the contract, the Claimant was entitled to a monthly remuneration in the amount of EUR 1,000.

3. In addition, the Claimant was entitled to “housing, electricity, water and internet connection + round trip airplane tickets”.

4. Moreover, article 23 of the contract stipulated the following:

« Le club se réserve le droit de rompre à tout moment la convention unilatéralement »

"The [Respondent] reserves its rights to unilaterally terminate the contract at any time" (note: free translation from French).

5. On 24 January 2017, the Claimant lodged a claim before FIFA against the Respondent for breach of contract without just cause, and requested the payment of a total amount of EUR 7,000 as compensation, corresponding to his remuneration until May 2017, plus “respective interests”.

6. In particular, the Claimant explained that, even though the contract was formally specified as having an amateur nature, it should be understood as a professional contract. More specifically, and in reference to art. 2 of the Regulations on the Status and Transfer of Players, the Claimant argued that the contract stipulated a fixed monthly remuneration and that, considering that the Respondent committed to pay his housing costs and other fringe benefits, it can be established that his remuneration was higher than the costs in which he incurred as a football player.

7. As to the facts, the Claimant explained that, on 5 November 2016, the Respondent’s sports director sent him an email, according to which he informed him that the Respondent’s president and coach were not satisfied with his performance and that, consequently, they decided to release him from his obligations towards the Respondent. In this regard, the Claimant further indicated that the Respondent attached to said email a “release letter”, allegedly signed by its president.

8. In this regard, the Claimant argued that the Respondent had no just cause to terminate the contract on the basis of his performance and that, within this context, the contents of article 23 of the contract (cf. point I.4 above) must be disregarded.

9. In its reply, the Respondent considered that the Claimant failed to meet the required sporting expectations and that, in view of the above, he was released from all his obligations. Moreover, the Respondent explained that “in November 2016”, it reached an amicable settlement with the Claimant. Moreover, the Respondent insisted that it had no outstanding payments towards the Claimant.

10. After being invited to provide his replica, the Claimant explained that he did not want to provide any further comments.

11. Finally, and upon FIFA’s request, the Claimant informed that he remained unemployed until January 2017, and that, on 5 January 2017, he concluded an amateur contract with the Club of Country B, Club E, valid as from the date of signature until 30 June 2017. According to the fourth clause of said contract, the Claimant was entitled to a monthly refund in the amount of EUR 300 for his activities as a football player, upon presentation of a receipt detailing the incurred costs.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed whether it was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 24 January 2017. Consequently, the 2017 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 2017 edition of the Procedural Rules).

2. Subsequently, the DRC 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) he is competent to deal with the matter at stake, which concerns an employment-related disputes between a club and a player with an international dimension between a Player of Country B and a Club of Country D.

3. The competence having been established, the Chamber decided thereafter to analyze 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, 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 matter was submitted to FIFA on 24 January 2017, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Having established the foregoing, and entering into the substance of the matter, the DRC 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 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. In this respect, the Chamber acknowledged that, on 30 May 2016, the parties to the dispute had signed an employment contract valid as from 30 May 2016 “until the end of the 2016/2017 season.”

6. Subsequently, the Chamber noted that the Claimant lodged a claim against the Respondent, maintaining that the latter had unilaterally terminated the employment contract on 5 November 2016 by means of “release letter” attached to an email, due to the Claimant’s alleged low performance. Consequently, the Claimant asks to be awarded with compensation for breach of the employment contract.

7. In this respect, the members of the Chamber took note of the Respondent’s position, which confirmed that it terminated the contract for alleged low performance.

8. Having established the foregoing, the Chamber turned its attention to the question as to whether the contract had been terminated by the Respondent with or without just cause.

9. In this context, the Chamber turned its attention to article 23 of the employment contract, which apparently supported said form of termination.

10. As stated above, according to the aforementioned article, "The [Respondent] reserves its rights to unilaterally terminate the contract at any time".

11. In this respect, the Chamber held that it could not accept said article as being valid, as it provides for a unilateral termination right that is based on a purely one-sided and subjective evaluation allegedly made by the Respondent.

12. In addition to the unilateral character of said clause, the Chamber pointed out that, in accordance with its longstanding jurisprudence and as a general principle, a player cannot be dismissed for alleged poor performance. Thus, the Chamber emphasised that poor or unsatisfactory performance cannot be considered as a just cause to terminate a contract. Hence, the Chamber considered that by terminating the contract based on poor performance, the Respondent acted in an abusive manner and without just cause.

13. In view of the aforementioned, the Chamber stated that the unilateral termination of the employment contract on 5 November 2016 by the Respondent constitutes a breach of contract without just cause.

14. Notwithstanding the above, the members of the Chamber observed that, according to the Respondent, the parties reached an amicable settlement “in November 2016” (cf. point I. 9 above).

15. In this respect, the Chamber deemed relevant to refer 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.

16. Within this context, the members of the Chamber observed that the Respondent failed to provide any evidence as to the existence of the aforementioned amicable settlement. Consequently, the members of the Chamber unanimously agreed that the allegation from the Respondent as to the aforementioned amicable settlement had to be dismissed.

17. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent on 5 November 2016.

18. In this regard, the members of the Chamber noted that, according to the contract, the Respondent committed to pay to the Claimant the total amount of EUR 1,000 per month.

19. Subsequently, the Chamber focused its attention on the consequences of the breach of contract in question and, in this respect, it 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 on the basis of the relevant employment contract.

20. In continuation, the Chamber 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.

21. In application of the relevant provision, the Chamber 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 Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

22. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

23. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract until 30 June 2017 (i.e. the original date of expiration of the contract). In this regard, the members of the Chamber observed, as detailed above, that under the contract, the Respondent agreed to pay to the Claimant a monthly remuneration of EUR 1,000. Consequently, the members of the DRC established that, accordingly, the Claimant would have earned the amount of EUR 8,000, which serves as the basis for the calculation of the payable compensation.

24. In continuation, the Chamber verified as to 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 Claimant’s general obligation to mitigate his damages.

25. In this regard, the DRC remarked that, following the termination of the contract by the Respondent, the Claimant had concluded a new employment with the Club of Country B, Club E, valid from 5 February 2017 until 30 June 2017, by means of which said club committed to refund certain monthly expenses to the Claimant for a maximum amount of EUR 300 per month. Therefore, the members of the Chamber understood that said amounts are only refunds for costs and not a fixed salary, and consequently, determined that it cannot be established that the Claimant could mitigate his damages.

26. Moreover, the DRC took note of the claim of the Claimant, who requested the payment of the amount of EUR 7,000, as well as of the general principle of non ultra petita, according to which it cannot grant more to a party than it requested.

27. In conclusion, for all the above reasons, the Chamber decided accept the Claimant’s request and that the Respondent must pay to the Claimant the amount of EUR 7,000 as compensation for breach of contract without just cause, which is considered by the Chamber to be a reasonable and justified amount as compensation.

28. 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 compensation as of from the date of the claim.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 7,000, plus 5% interest p.a. as from 24 January 2017 until the date of effective payment.

3. In the event that the aforementioned sum 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. 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 Dispute Resolution Chamber 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 Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Enclosed: CAS directives