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 19 January 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 19 January 2017,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Wouter Lambrecht (Belgium), member

on the claim presented by the player,

Player A, from country A

as Claimant

against the club,

Club B, from country B

as Respondent

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 17 March 2015, the player from country A (hereinafter: player or Claimant) and the Club B, from country B (hereinafter: club or Respondent) signed an employment contract (hereinafter: contract) valid as from 19 January 2015 until 30 June 2016.

2. According to art. 9 par. 1 and art. 12 of the contract, the player was entitled to receive a salary of 3,292.18 on a monthly basis.

3. According to art. 13 of the contract, “Unilateral termination of contracts harmful consequences are defray by side who broke the contract” and “If there are grounds for termination of the agreement, termination of the contract will be approved by the Players’ Status Committee in the first instance. To appeal in the second instance for the players of premier League”

4. On 4 March 2016, the player sent a default notice to the club reading that before he returned to country A on 1 June 2015, the club had failed to pay him his last three salaries. Hence, the player granted the club a deadline until 15 March 2016 to pay these salaries, i.e. 9,876.54, as well as 29,629.62 as the contractual value until the end of the contract.

5. On 18 March 2016, the player lodged a claim in connection with outstanding remuneration and alleged breach of contract against the club before FIFA. In said claim, the player reiterated the information contained in his above-mentioned default notice and added that the club never responded to him.

6. Therefore, the player asked that the club be ordered to pay him 9,876.54 corresponding to this outstanding salaries for the months of April, May and June 2015, as well as 29,629.62 as compensation for breach of contract, i.e. nine instalments of 3,292.18 each.

7. The club, for its part, rejected the player’s claim and held that it is the player who left the club and unilaterally terminated the contract.

8. In this respect, the club explained that, on 20 January 2016, it lodged a claim against the player in front of the “Committee for status of players in affiliated registry Football Association of country B in order to “determine the employment contract termination” and that, on 1 February 2016, said Committee decided that as of 19 June 2015, the contract had been unilaterally terminated by the player.

9. Additionally, said decision reads that the club’s Disciplinary Committee sanctioned the player with a fine of 6,000 and that the termination of the contract as of 19 June 2015 was pronounced on the basis of the allegations that the player had not resumed training as of 10 June 2015, had not justified his absence and remained absent from the club who was unaware of his place of residence.

10. Additionally, the club specified that according to the aforementioned decision and “pursuant to provisions of the Ordinance on Registration, status and Transfer of Players” the consequences of the termination of contract shall be borne by the player.

11. In his replica, the player asserted that as early as on 3 June 2015 he had already asked the club to pay his salaries for February and May 2015, as well as match bonuses, and added that the club was therefore aware of all his contact details, should it have wished to contact him.

12. In continuation, the player explained that on 1 June 2015, the day after the last match of the season, he flew back to country A with the ticket the club had provided him with.

13. However, he considered that the club had breached the contract without just cause as of 19 June 2015, since the club (i) had failed to pay his salaries for the months of February, May and June “2016” and (ii) did not send him his return flight ticket for the 2015/2016 season.

14. The player maintained his claim against the club and asserted that he “never unilaterally breached [his] contract with the club and [that he is] not sure if the Football Association of country B is competent to declare [his] contract terminated as of 19-6-2015 as a consequence of the request done by Club B on 20-1-2016, 7 months after [he] “supposedly” breached [his] contract.”

15. The club has not presented any final comments on the matter, in spite of having been invited to do so.

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 18 March 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. article 21 of the Procedural Rules).

2. In continuation, 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 would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country A player and a country B Club.

3. However, the Chamber noted that the Respondent deems that the Dispute Resolution Chamber has no competence to deal with the claim at stake by virtue of the application of the legal principle of res iudicata.

4. In this respect, the Respondent pointed out that the Claimant’s claim is aimed at obtaining a decision from the Dispute Resolution Chamber ruling that the Respondent terminated the contractual relationship with the Claimant without just cause, whereas the employment relationship between the parties has already been considered terminated at the Claimant’s fault by means of the decision passed on 1 February 2016 by the Committee for status of players of the Football Association of country B on the basis of the claim lodged by the Respondent against the Claimant in front of said deciding body on 20 January 2016.

5. Against such background, the Chamber deemed it appropriate to first briefly recall that on the basis of the principle of res iudicata, a decision-making body is not in a position to deal with the substance of a case in the event that another deciding body has already dealt with the same matter by passing a final and binding decision. Indeed, the parties to the dispute as well as the deciding authority are bound by the final and binding decision previously passed.

6. In this respect, the Chamber wished to highlight that from the copy of the decision of the Committee for status of players of the Football Association of country B that was provided by the Respondent, it could be verified that the Respondent lodged a claim against the Claimant before said decision-making body in order to obtain a decision ruling that the contract signed by and between the parties be deemed unilaterally terminated by the Claimant on the basis of his arbitrary leave from the Respondent and his failure to comply with his contractual obligations.

7. What is more, the Chamber noted that in its decision, the Committee for status of players of the Football Association of country B decided that the employment contract concluded between the Respondent and the Claimant “has been unilaterally terminated by the aforementioned player, as of 19/06/2015” and that the “consequences of the unilateral termination of the contract (…) shall be borne by the player A (…).”

8. In this context, the Chamber further noted that whereas art. 13 of the contract contains a reference to the competence of the aforementioned decision-making body in connection with situations of termination of contract, the Claimant, for his part, did not state that he was unaware of the occurrence of the aforementioned proceedings but limited himself to assert that he was “not sure if the Football Association of country B [was] competent to declare [the relevant] contract terminated.”

9. In view of the aforementioned, and after having also taken due note that the Claimant had implicitly acknowledged not having lodged any appeal against said decision of the Committee for status of players of the Football Association of country B, the members of the Chamber reached the conclusion that the Claimant’s claim against the Respondent for unlawful termination of the contract indeed has to be considered a res iudicata and that, therefore, this part of the Claimant’s claim had to be qualified as inadmissible. Consequently, the Chamber could not enter into the substance of the Claimant’s claim related to breach of contract and compensation for breach of contract.

10. Notwithstanding the above, the Chamber recalled that in his statement of claim, the Claimant also asserted that the Respondent had failed to pay remuneration in the amount of 9,876.54 and asked that the Respondent be ordered to pay him such amount.

11. In this regard, and after a careful review of the contents of the aforementioned decision of the Committee for status of players of the Football Association of country B, the members of the Chamber agreed that this specific part of the Claimant’s claim did not appear to have been dealt with on the occasion of said local proceedings.

12. Therefore, taking into account the articles of the Procedural Rules and the Regulations on the Status and Transfer of Players referred to under points II./1. and II./2. above, the Chamber decided that the Dispute Resolution Chamber is competent to deal with and enter into the substance of the Claimant’s claim relating to outstanding remuneration.

13. Subsequently, the DRC analysed which regulations should be applicable as to the substance of this aspect of the present matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2 of said Regulations (edition 2016), and considering that the present claim was lodged on 18 March 2016, the 2015 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the substance of this aspect of the present matter.

14. The competence of the Chamber and the applicable regulations having been established, the Chamber started by acknowledging the relevant above-mentioned facts as well as the arguments and the documentation submitted by the parties in this respect. 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.

15. On account of the above, the Chamber deemed relevant to recall that in his statement of claim, the Claimant reported that the Respondent failed to pay his salaries in connection with the months of April, May and June 2015, i.e. the amount of 9,876.54.

16. On the other hand, the DRC noted that in spite of having been invited to do so, the Respondent had not submitted any comments in connection with this aspect of the Claimant’s claim. Accordingly, the DRC considered that it was to be concluded that the Respondent accepted the allegations of the Claimant in this respect.

17. In this context, and bearing in mind the relevant terms of the employment contract as well as the decision of the Committee for status of players of the Football Association of country B, i.e. in particular its finding that the Claimant should have resumed his contractual duties on 10 June 2015, the Chamber found (i) that the Claimant’s salary for the month of June 2015 had not yet fallen due at the time when the Claimant left the club on 1 June 2015 and (ii) that the Claimant was only entitled to receive remuneration for 9 days of June 2015.

18. On account of the above, 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 outstanding remuneration in the amount of 7,571, i.e. the Claimant’s full monthly salary for the months of April and May 2015 as well as salary of 9 days for the month of June 2015.

19. The Chamber concluded its deliberations in the present matter by rejecting any further claim lodged by the Claimant.

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 B, is ordered to pay to the Claimant outstanding remuneration in the amount of 7,571 within 30 days as from the date of notification of this decision.

3. If the aforementioned amount is not paid within the above-mentioned time limit, interest at the rate of 5% p.a. will apply as of expiry of the above-mentioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its 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:

Marco Villiger

Deputy Secretary General

Encl.: CAS directives