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 30 September 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 September 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Jon Newman (United States of America), member

Mario Gallavotti (Italy), member

Taku Nomiya (Japan), 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 25 June 2014, the Player of Country B, Player A (hereinafter; the Claimant or the player) and the Club of Country D, Club C (hereinafter; the Respondent or the club) (hereinafter jointly referred to as the parties) concluded an employment contract valid as of the date of its signature until 31 May 2016.

2. On 14 July 2015, the parties concluded another employment contract valid as of the date of its signature until 31 May 2016 (hereinafter also; the employment contract) whereby it was agreed that the Claimant would be entitled to receive from the Respondent, inter alia, the amount of EUR 101,000 payable in ten equal instalments of EUR 10,100 “at the end of each month, starting on 30/08/2015 and ending on 31/05/2016 with 60 (sixty) days grace period”.

3. Moreover, clause 9 of the employment contract states as follows: “[The Respondent] shall pay the player’s emoluments in the manner specified herein with a grace period of 60 (sixty) days. In the event that the club does not make available due payment, then the player can hold the club responsible and the player has the right to cancel this agreement by his side and the club must pay to the player 3 (three) compensatory payments (3 salaries)”.

4. On 3 December 2015, the Claimant lodged a claim against the Respondent in front of FIFA requesting as follows:

a. EUR 30,300 as outstanding remuneration regarding his salaries of September, October and November 2015 plus 5% interest as of the due dates;

b. EUR 60,600 as compensation for breach of contract plus 5% interest as of the date of the claim;

c. Sporting sanctions on the Respondent.

5. In particular, the Claimant explained that in March 2015, he suffered and injury, reason for which he agreed to reduce his salary by signing the employment contract dated 14 July 2015.

6. The Claimant further exposed that since the beginning of the 2015/2016 season, he was excluded by the Respondent and was not allowed to train with the rest of the team. The Claimant argued that thereafter, he contacted the Football Association of Country D to ask whether he was eligible to participate with the club for the 2015/2016 season. In this regard, the Claimant stressed that, while enclosing a letter from the Football Association of Country D dated 19 October 2015, the latter association informed him that he “is not registered in the list of professional footballers above 21 years of age of the club…”

7. Along those lines, the Claimant explained that in accordance with the “applicable Football Association of Country D Regulations” only players registered in the “A or B list” are eligible to participate in the Football Association of Country D Championships. The Claimant held that the Football Association of Country D confirmed he was not registered in the club’s A list and that, as far as the B list, “this is limited to the players under the age of 21. As a result, the Claimant cannot be registered in the said B list”. What is more, according to the Claimant, he was never informed by the Respondent that he was not going to be registered with the club’s A list.

8. In continuation, the Claimant argued that on 16 November 2015, he addressed a letter to the Respondent requesting the latter to comply with its obligations. Nevertheless, the player asserted that, on 20 November 2015, he received a letter from the Respondent dated 30 October 2015 whereby, contrary to its request, it terminated the employment contract due to certain disciplinary faults.

9. In particular, the relevant parts of said letter read as follows: “…I am informing you that the [employment contract] made between [the parties] is now terminated by the club.

After several times of failing the coach and the directors’ instructions to have a good corporation (sic) we cannot accept anymore actions that insult our club.

(…)

Although we try to help you to recover from your injury (…) you was (sic) continuously ignoring [the coaches and physiotherapists] instructions (…) Therefore, you failed the tests that was (sic) made by the coaches and in fact now he cannot help the team at all.

Also during several training sessions your attitude inside the dressing rooms was very rude and very unprofessional to our member staff…”

10. In this regard, the Claimant asserted that all the allegations established in the termination letter are untrue and that he has “never in the past been warned for any unprofessional behaviour nor had he ever been accused for any disciplinary offences”.

11. Moreover, the Claimant held that at the moment of the termination, the Respondent had only paid him his salary of August all the others remaining outstanding.

12. As a consequence to all the above, the Claimant alleged that the Respondent terminated the contract without just cause and that he is therefore entitled to receive compensation for breach of contract.

13. In its reply to the claim, the Respondent challenged the competence of FIFA to deal with the present matter as “the [Football Association of Country D] is an independent association which is the competent body to deal with the present dispute…”

14. As to the substance of the matter, the Respondent stressed that the Claimant was not registered in the club’s A list because he was injured and he was therefore “not able” to participate in any official match with the team. In this respect, the Respondent asserted having provided the player with a recovery programme however, the behaviour of the player was “extremely unprofessional” as he did not follow the instructions of “coaches, doctors and physiotherapists”. To prove its allegations, the club enclosed 4 letters allegedly issued by the club’s coach and physical trainer during the month of October “2016” whereby the said club’s staff reported the “unprofessional attitude” of the player. Moreover, the Respondent enclosed another letter dated 20 October “2016” apparently addressed to the Claimant warning him about his unprofessional behaviour. As a result of the above, the Respondent argued that it had just cause to terminate the contract.

15. Furthermore and in case it would be determined that the Respondent terminated the contract without just cause, the latter argued that the Claimant would only be entitled to three months compensation in accordance with clause 9 of the employment contract. In this respect, according to the club, “the meaning of this clause is that the parties agreed that in case of an earlier termination of [the contract], then the compensation to the innocent party will be equal to three months salary”.

16. Along those lines, the Respondent stressed that, in accordance with the aforementioned clause, the Claimant accepted that he would not be entitled to “any other kind of financial compensation”.

17. Finally, the Respondent argued that it paid EUR 2,345 for “outstanding rents” of the player, amount which “shall [be] taken into account” when determining the outstanding remuneration due to him.

18. After having been requested by FIFA, the Claimant informed that he concluded a new employment contract with the Club of Country B, Club E valid as of 1 January 2016 until 31 December 2016 and according to which, he is entitled to receive a monthly salary of 350,000.

19. On 5 August 2016, the FIFA administration informed the parties that the investigation-phase of the matter at hand had been concluded and that no further submissions from the parties would be admitted to the file.

20. On 17 August 2016, the Claimant submitted some additional unsolicited comments.

21. On 23 September 2016, the FIFA administration informed the Claimant that, in view of the content of its letter dated 5 August 2016 and of art. 9 par. 4 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, it would be up to the DRC to decide whether or not to take into account his additional unsolicited comments.

II. Considerations of the Dispute Resolution Chamber

1. First, 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 3 December 2015. 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 stake (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 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 Player of Country B and a Club of Country D.

3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies in view of the fact that “the [Football Association of Country D] is an independent association which is the competent body to deal with the present dispute…”.

4. With the aforementioned considerations in mind, and prior to entering into the analysis of its competence, the Chamber wished to recall that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement.

5. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC can settle an employment-related dispute between a club and a player of an international dimension, is that the competence of the relevant arbitration tribunal, respectively national court, derives from a clear reference in, inter alia, the employment contract at the basis of the dispute.

6. Therefore, while analysing whether it was competent to adjudicate the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a clear and exclusive arbitration clause in favour of a specific national dispute resolution body.

7. With the above-mentioned considerations in mind and after a thorough analysis of the contract at the basis of the present dispute, the members of the Chamber concluded that said contract did not contain an arbitration clause in favour of any national body. Therefore, the members of the Chamber came to the unanimous conclusion that, in the present matter, one of the indispensable requirements in order to determine that another body than the DRC is competent to deal with an international employment-related dispute is not met.

8. On account of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected and that thus the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to entertain the Claimant’s claim as to the substance.

9. Having established the above, the Chamber analysed which edition of the 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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2016) and considering that the present claim was lodged on 3 December 2015, the 2015 edition of said Regulations is applicable to the present matter as to the substance.

10. The competence of the Chamber and the applicable regulations having been established and entering into the substance of the matter, the Chamber continued its acknowledgment of the above-mentioned facts as well as of the documentation contained in the file. 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 substance of the matter at hand.

11. At this point, the Chamber wished to address in the first place the admissibility of the Claimant’s additional unsolicited comments submitted on 17 August 2016. In this respect, the DRC wished to refer to art. 9 par. 4 of the Procedural Rules, according to which the parties shall not be authorised to supplement or amend their requests or their arguments, to produce new exhibits or to specify further evidence on which they intend to rely, after the notification of the closure of the investigation. Bearing in mind that on 5 August 2016 the FIFA administration duly notified the parties of the closure of the investigation, the Chamber declared that the additional unsolicited comments of the Claimant submitted on 17 August 2016 are inadmissible.

12. Having so found and entering into the substance of the matter, the Chamber acknowledged that the parties entered into an employment contract valid as of 14 July 2015 until 31 May 2016 whereby it was agreed that the Claimant was entitled to a monthly salary of EUR 10,100.

13. Furthermore, the members of the Chamber took note that it is undisputed that by means of its letter dated 30 October 2015, the Respondent unilaterally terminated the contract on 20 November 2015 alleging certain disciplinary faults on the Claimant’s part.

14. Having said that, the members of the Chamber proceeded to analyse the claim of the Claimant who argues that the Respondent did not have just cause to terminate the contract. In particular, the Chamber took note that, according to the Claimant, the Respondent’s assertions contained in the termination letter about his “unprofessional behaviour” are untrue. Moreover, the Chamber duly took note that, according to the Claimant, he was not registered with the club’s A team and he only received his salary of August 2015.

15. In continuation, the Chamber went to analyse the position of the Respondent which, conversely, argues that it had just cause to terminate the contract as the Claimant did not follow the instructions of the club’s coaches and physiotherapists. According to the Respondent, the Claimant was warned about his “unprofessional behaviour” by means of the letters described in point I./14. ut supra.

16. In view of the foregoing considerations, the Chamber deemed that the underlying dispute in the matter at hand was whether the relevant employment contract had been terminated by the Respondent with or without just cause and, depending on this finding, it would have to determine which would be the potential consequences of said termination.

17. Before entering into the analysis of the parties’ position, the members of the Chamber wished to recall certain basic principles. In particular, the members of the Chamber highlighted that, according to art. 12 par. 3 of the Procedural Rules any party claiming a right on an alleged fact carry the burden of proof. In casu, the Chamber was of the unanimous opinion that the Respondent carries the burden to proof that the “unprofessional behaviour” of the Claimant granted it a just cause to terminate the contract.

18. With the above in mind, the Chamber focused its attention on the warning letters presented by the Respondent dated 5, 7, 19 and 20 October “2016” and noted that all of them are issued by employees of the club. In this respect, the Chamber wished to highlight that the probative value of personal statements from employees is rather low as these cannot be considered as completely impartial since they might be affected by diverse contextual factors. Therefore, the credibility of such type of internal documentation is quite limited. Moreover, the Chamber emphasised that there is no evidence on file which can demonstrate that said warning letters were indeed notified to the Claimant let alone that the latter was granted the opportunity to present his position on the content of such.

19. Consequently, the members of the Chamber were of the unanimous opinion that the Respondent failed to prove, at its satisfaction, the Claimant’s alleged “unprofessional behaviour”.

20. In any case, the DRC wished to recall its long standing and well-established jurisprudence which dictates that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. 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, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can always only be an ultima ratio. In casu, in the DRC’s view, there were more lenient measures which the Respondent could have taken in case it was of the understanding that the Claimant was acting in an “unprofessional” manner.

21. On account of all the aforementioned circumstances, the Chamber concluded that the Respondent did not have just cause to terminate the contract on 20 November 2015 and therefore, it should be held liable for the consequences thereof. As such, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent.

22. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per the contract in accordance with the general legal principle of pacta sunt servanda. In this respect, the DRC pointed out that the Respondent is not disputing having failed to pay the Claimant his salaries of September and October 2015. The Chamber decided thus that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination of the contract i.e. EUR 20,200 corresponding to the Claimant’s salaries of September and October 2015.

23. In addition, taking into consideration the player’s claim as well as the Chamber’s jurisprudence, the members of the DRC decided to award interest on said amounts at the rate of 5% p.a. as of the respective due dates.

24. In continuation, the Chamber 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 in addition to any outstanding salaries on the basis of the relevant employment contract.

25. In this context, 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 player 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.

26. 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 acknowledged that clause 9 of the employment contract provides as follows: “[The Respondent] shall pay the player’s emoluments in the manner specified herein with a grace period of 60 (sixty) days. In the event that the club does not make available due payment, then the player can hold the club responsible and the player has the right to cancel this agreement by his side and the club must pay to the player 3 (three) compensatory payments (3 salaries)”.

27. Along those lines, the Chamber duly noted that, according to the Respondent, any payable compensation should be awarded in accordance with said clause. Nevertheless, the members of the Chamber unanimously concluded that they could not take such clause into account in order to determine the payable compensation for breach of contract as the scenario foreseen in said clause is not applicable in the matter at hand. Indeed, it was not the Claimant but the Respondent which terminated the contract.

28. As a consequence, the members of the Chamber determined that the prejudice suffered by the Claimant in the present matter had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter, as well as the Chamber’s specific knowledge of the world of football and its experience gained throughout the years.

29. With the aforementioned in mind, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract, along with the professional situation of the player after the early termination of the contract occurred. In this respect, the Chamber pointed out that the remaining value of the contract which was breached as from its early termination by the Respondent until its regular expiry amounts to EUR 70,700, comprised of his salaries as of November 2015 until May 2016. The Chamber concluded that this amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

30. In continuation, the Chamber recalled that the Claimant had entered into a new employment contract with the Club of Country B, Club E valid as of 1 January 2016 until 31 December 2016 whereby it was agreed that he is entitled to a monthly remuneration of 350,000, which in turn equals to roughly EUR 30,000.

31. In view of all of the above, the Chamber first pointed out that, in principle, the Claimant’s new contract is of a higher value than his previous contract. Nevertheless, the Chamber stressed that the Claimant was de facto prevented from mitigating his damages during the months of November and December 2015 as the player’s new employment contract started only as of January 2016. As a consequence, the DRC decided that the Respondent must pay the amount of EUR 20,200 to the Claimant as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount, as well as 5% interest p.a. over said amount as from the date of the claim, i.e. 3 December 2015, until the date of effective payment.

32. Finally, the Chamber concluded its deliberations by establishing that any further requests by the parties are rejected.

III. Decision of the Dispute Resolution Chamber

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

2. The claim of the Claimant is partially accepted.

3. The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 20,200 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. on the amount of EUR 10,100 as of 1 October 2015;

b. 5% p.a. on the amount of EUR 10,100 as of 1 November 2015.

4. The Respondent is ordered 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 20,200 plus 5% interest p.a. as of 3 December 2015 until the date of effective payment.

5. In the event that the amounts plus interest due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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

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

*****

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:

Marco Villiger

Deputy Secretary General

Encl. CAS Directives