F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 25 January 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 January 2018,

in the following composition:

Geoff Thompson (England), Chairman

Tomislav Kasalo (Croatia), member

Pavel Pivovarov (Russia), 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

between the parties

I. Facts of the case

1. On 1 July 2016, the Player of Country B, Player A (hereinafter: the player or Claimant) and the Club of Country D, Club C (hereinafter: the club or Respondent) concluded an employment contract (hereinafter: the contract), valid as from 1 July 2016 until 30 June 2017, as well as a document referred to as ‘schedule’ (hereinafter: the schedule). Furthermore, the contract contains an option for extending the contract for two more years.

2. According to the contract and the schedule, for the 2016/2017 season, the player is entitled to receive inter alia the following amounts:

- a gross monthly salary of 50,000, according to the player equalling to USD 3,797.32;

- a sign-on fee of 200,000, according to the player equalling to USD 15,189.28.

3. Article 17 par. 2 of the contract holds the following clause: ‘If the footballer refuses to attend work, training, or a match, the principle of ‘no work, no pay’ will apply quite apart from other sanctions that the club may be entitled to apply’.

4. Article 19 of the contract, ‘Dispute Resolution’, contains the following clause: ‘19.1: All disputes arising out of or relating to this contract, including disputes as to the meaning or interpretation of any provision of this contract or as to the carrying into effect of any such provision or as to the termination or consequences of termination shall be referred to Dispute Resolution in accordance with the Football League J rules from time to time. 19.2 The parties warrant that, in accordance with the football rules, any and all disputes of whatsoever shall be determined in accordance with the Football League J rules and in the Dispute Resolution Tribunals of the Football League J rather than before any court or other tribunal insofar as it is a requirement of FIFA and other footballing rules that the International dispute resolution mechanisms available in football should be utilised by participants in the game save where the football rules do not provide an appropriate tribunal to determine the dispute’.

5. On 14 January 2017, the player and the club signed a document, referred to as ‘termination agreement’, according to which the player and the club ‘have mutually agreed to terminate his employment contract with immediate effect’ (hereinafter: ‘the termination agreement’). Further, the termination agreement provided for the following: ‘it is agreed that Club C will pay 250 000. The amount represent a settlement in full and final, and Club C has no further obligation to PLAYER A’.

6. On 23 February 2017, the player lodged a claim against the club in front of FIFA, requesting that the club has to be ordered to pay the following amounts to the player:

- 300,000 as compensation for breach of contract, corresponding to the residual value of the contract in the period between January and June 2017, corresponding to six monthly payments of 50,000 each, plus 5% interest p.a. as of the date of the ‘arbitration decision’;

- an unspecified amount of ‘general damages’;

- ‘special damages’ in the amount of ‘USD 458.289’, as reimbursement of the costs of a flight ticket from City E, Country D, to Country B.

In addition, the player asked to be awarded ‘20% interest on all expenses, outstanding remunerations and allowances’, as from the respective due dates. Finally, the player requested for sporting sanctions to be imposed on the club.

7. In his claim, the player explains that on 14 January 2017, he was ‘summoned to the club’s offices in Football Stadium F’, where he was informed by the club that it wished to terminate the contract. According to the player, the CEO of the club, Mr CEO G, ‘brought a certain document’ to him to sign ‘and walked in with two men who were armed with guns’. The player further explains that these men threatened him ‘to sign the document, and after he did, they left’. Also, the player indicates that he ‘grabbed his copy of the employment contract and ran out of the office, leaving the CEO inside’.

8. Further, the player explains that immediately after the incident, he reported the matter to the police, and returned to the stadium with two police officers. Upon being informed about these circumstances, the president of the club, Ms President H, returned to the stadium, and ‘after a short discussion’, ‘printed out a termination agreement, which the [player] was made to sign and one of the officers as a witness’. According to the player, the termination agreement stipulated that he was entitled to an amount of 250,000, which he understood to be a settlement of the outstanding sign-on fee, as this amount was already outstanding for a long period.

9. In addition, the player explains that on an unspecified date, ‘the chairperson of the club’ drove to his hotel and forced him to write a note on the letterhead of the club, ‘stating that he had no issues with the club and that the club treated him well’. In this respect, the player submitted a handwritten note, on plain paper, stating: ‘To Chairpersons of Club C, President H. This is to state my disappointment on the news claiming that you had me threated. This is all incorrect, in fact, I am grateful to you and everything you have done for me. The termination agreement I signed is correct and I wasn’t forced to sign it. I did this willingly and I have been paid everything due to me. I wish to state my apologies for everything. Player A’.

10. Subsequently, the player holds that ‘the matter was widely reported in the media on diverse dates, including the 14th of January, when the unfortunate incident took place’.

11. Moreover, the player explains that on an unspecified date, he left Country D and that on 25 January 2017, he received a clearance letter from the club, allowing him to join any team of his choice.

12. In addition, the player argues that on 31 January 2017, his legal representative contacted the club, informing it that the termination of the contract was made under ‘undue influence and duress’ and inter alia requesting the payment of an amount of 300,000 as compensation for breach of contract.

13. Furthermore, the player explains that Ms President H, in a letter dated 18 February 2017, informed him that the dispute needs to be solved by a Disciplinary Committee ‘set up by the club itself’, and confirmed that she indeed instructed the player to write down a statement. On 20 February 2017, the player denied this option and indicated that he was afraid to go back to Country D, as well as that he had the opinion that the Committee would not be impartial.

14. In its reply to the claim of the player, the club contests FIFA’s competence to deal with the matter at hand, as it holds that the ‘Dispute Resolution Chamber of the Football League J (hereinafter: the NDRC of Country D) and/or the statutory employment tribunal, the Commission for Conciliation Mediation and Arbitration or the Courts’ should be competent.

15. The club submitted a copy of the ‘Football League J Handbook – as adopted on 15 November 2016’, which apparently was most recently amended on 19 December 2016 and clarifies that the there is an explicit arbitration clause in the contract, as well as that the NDRC of Country D is established at national level and is an entirely independent judicial tribunal, which respect fair proceedings and the principle of equal representation. Moreover, the club explains that there is ‘a collective agreement in place, requiring compliance with the Rules of the Football League J’. What is more, the club explains that in the most recent version of the rules for the NDRC of Country D, the issue that the chairman was chosen ‘by a committee that represent a body (the Football League J) composed of exclusively clubs’, and the fact that the player ‘had pay a fee to refer a matter’, were formally ‘addressed’.

16. Moreover, the club deems that there is no international dimension to the current dispute, as the ‘employment dispute’ itself is limited to Country D and Law of Country D.

17. As to the substance, the club holds that there is no dispute between the parties, as both signed the termination agreement dated 14 January 2017.

18. In relation to the events apparently occurred, Ms President H, on behalf of the club, explains that on 14 January 2017, she received a phone call from the police, with the instruction to come to the club’s stadium. Upon arriving at the stadium, Ms President H states that she met the player, as well as the two police officers, and listened to the player’s story as to the alleged events occurred.

19. In this respect, Ms President H holds that the player told her that he refused to sign the document the CEO gave him, as ‘he had no problem with terminating his contract’, but that he could not agree with the fact that two man ‘had a gun, pointed it at him and motioned him to sign’. According to Ms President H, the player did not sign the document, but took it and went to the police.

20. After the conversation with the player, Ms President H holds that – in order to avoid negative publicity and because she had a good relationship with the player – she negotiated on the phone with the agent of the player on a termination agreement. During the negotiations, Ms President H holds to have found out that the player’s agent already negotiated with the club’s CEO on a termination agreement, but that they could not agree on the conditions. Moreover, after some negotiations on 14 January 2017, Ms President H holds that the club and the player agreed upon a termination agreement, as well as the payment of the amount of 250,000. According to Ms President H, said amount was transferred immediately via e-banking to the player, who confirmed receipt of the money while still being in the club’s offices, in the presence of one of the police officers.

21. In relation to the conversation between the club’s CEO and the player, Ms President H explains that the CEO only provided the player with a draft of a termination agreement, which was not signed by the player, who only took a picture of it. In relation to the allegations that two man had threatened the player, according to Ms President H, the CEO told her that there were, ‘for a very short time‘, two man in the office, looking for replica jerseys. As such, the club denies all allegations that the player was threatened with a gun.

22. Moreover, after Ms President H found out that some reports were published on social media about the alleged events occurred in the club’s offices on 14 January 2017, she contacted the player and met him later that day (14 January 2017) at the apartments of the club, where the player was at that moment. Ms President H hold that she instructed the player ‘to write that I had not threatened him’, which the player did. In addition, Ms President H holds on 16 January 2017, she received a text message, in which he thanked her for everything she had done for him. In addition, Ms President H argues that the player himself asked for the clearance certificate.

23. Furthermore, Ms President H points out that she contacted the Police of Country D, in order to find out whether an official complaint was filed by the player. In this respect, according to MS President H, the police told her that ‘no charges have been laid and that they could not provide me with any statements or information’.

24. In conclusion, Ms President H states that – given the different versions of the story – the only way to find out what really happened was to hold a hearing, in which all parties could state their version of the events. However, according to Ms President H, the player did not wish to do so.

25. Finally, Ms President H points out, on behalf of the club, that the player’s claim should be declared inadmissible, or in the alternative, rejected in full.

26. Despite being invited to do so, the player did not timely submit his replica. In particular, the player was provided a deadline until 9 July 2017 to submit his replica, however a reply dated 21 July 2017 was only received on 24 July 2017.

27. After being invited to do so, the player informed FIFA that on 1 March 2017, he signed an employment contract with the Club of Country K, Club L, valid as from 1 March 2017 until 31 December 2017 and provided a copy of said contract. Based on this document, the player is entitled to receive a monthly salary of USD 1,600. For period between 1 March 2017 and 30 June 2017, this amounts to the total amount of USD 6,400 (approximately 83,340).

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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 23 February 2017. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2017 edition; hereinafter: the Procedural Rules) are applicable to the matter at hand (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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2018 edition) the Dispute Resolution Chamber is, in principle, competent to deal with employment-related disputes with an international dimension between a Player of Country B and a Club of Country D.

3. Furthermore, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 18 January 2018 by means of which the parties were informed of the composition of the Chamber, the member Roy Vermeer and the member Daan de Jong refrained from participating in the deliberations in the case at hand, due to the fact that the member Roy Vermeer wished for personal reasons, not to take part in the deliberations of the matter at hand and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Daan de Jong refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations.

4. Furthermore, the members of the Chamber who took part in the adjudications, however, acknowledged that the club contested the competence of FIFA’s deciding bodies first on the basis of an alleged lack of international dimension to the dispute since the player was playing in Country D and concluded a contract with a club based in Country D. The DRC noted that the club considered that, in light of national law, the dispute between the club and the player falls within the scope of Law of Country D.

5. With regard to the argument of the club that the present matter was not one of an international dimension, the Chamber underlined that in accordance with the documentation on file provided by both parties, the player is a Citizen of Country B and holder of a Country B Passport. In absence of any objective evidence that the player holds another nationality, the international dimension is established by means of the player’s Country B Passport. The fact that the player concluded a contract with a Club of Country D and played in Country D does not give the dispute a national dimension. Thus, the Chamber concluded that the present dispute had an international dimension and the DRC is in principle competent to deal with it in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players.

6. In continuation, the members of the Chamber took note that the club also contested the competence of FIFA’s DRC on the basis of art. 19 of the contract, alleging that the player should have addressed his claim to the NDRC of Country D in Country D.

7. In this respect, the Chamber took into account all of the above and sought to emphasise that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2012, 2014, 2016 and 2018 editions) it is competent to deal with a matter such as the one at hand between a Club of Country D and a Player of Country B, 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. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular n° 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

8. In relation to the above, the Chamber also deemed it vital to outline that based on the contents of art. 9 par. 1 and art. 12 par. 3 of the Procedural Rules, the party contesting the competence of FIFA’s deciding bodies, needs to provide sufficient documentary evidence, on the basis of which it could be established that another deciding body than FIFA’s deciding bodies is competent, and that such other deciding body complies with the standards of an independent arbitration tribunal guaranteeing equal representation and fair proceedings.

9. In view of the foregoing, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether based on the documents provided by the club in its reply, it could be established that the NDRC of Country D should be competent to deal with the matter at hand.

10. Subsequently, the members of the Chamber established that the documentation provided by the club in support of its objection to FIFA’s competence consists of the Football League J Handbook, which appears to have been adopted on 15 November 2016 and which apparently was further amended on 19 December 2016. Already at this point, the members of the Chamber noted that these documents indeed provide for the regulations of the NDRC of Country D, however only came into force on 15 November 2016, i.e. after the starting date of the contract between the player and the club, which already started on 1 July 2016.

11. In view of the foregoing, the Chamber deemed it unnecessary to analyse the version of the Football League J Handbook adapted on 15 November 2016, in order to establish as to whether the NDRC of Country D respected the principle of equal representation of players and clubs, as said version was not in force at the date the parties started their contractual relationship and as such, the clauses included in the contract signed on 1 July 2016, could not refer to deciding bodies and their composition as mentioned the documents submitted by the club.

12. For the sake of completeness of its analysis, the DRC referred to the decisions previously taken by the Chamber in the cases with ref. nr. XXX, ref. nr. XXX and ref. nr. XXX, in which it indeed analysed the 2012 edition of the regulations of the NDRC of Country D of 1 August 2012 and finally concluded that such deciding body did not consist of independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. This has been confirmed by the Court of Arbitration for Sport (CAS) in the appeal CAS XXX.

13. On account of all of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected, and that 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 consider the present matter as to the substance.

14. In continuation, 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 2 of the Regulations on the Status and Transfer of Players (edition 2018), and considering that the present claim was lodged on 23 February 2017, the 2016 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

15. 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 Chamber started by acknowledging all the aforementioned facts as well as the arguments and the documentation submitted by the parties. The Chamber, however, 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.

16. In this respect, the Chamber recalled that the parties had signed an employment contract valid as from 1 July 2016 until 30 June 2017, in accordance with which the player was entitled to receive, inter alia, a monthly salary of 50,000 as well as a sign-on fee of 200,000.

17. Furthermore, the members of the Chamber acknowledged that on 14 January 2017, the player and the club signed a termination agreement, based on which document the contract was terminated with immediate effect on 14 January 2017, and which document further contained a declaration in accordance with which the player stated that after having received an amount of 250,000, the parties would have reached a final settlement and it would be established that the club had paid all the player’s dues, based on the contract (cf. point I./5. above).

18. In continuation, the Chamber noted that the player alleges that on 14 January 2017, he was threatened with guns by unknown persons in the club’s offices and forced to sign a non-specified document, which he did, however being under duress. Further, the members noted that the player explained that only after reporting this matter to the Police of Country D, the club’s president, Ms President H offered him to sign a new document, i.e. the termination agreement, based on which the contract would be terminated on 14 January 2017 and the club would be obliged to pay him an amount of 250,000.

19. Furthermore, the Chamber noted that the player, while explicitly confirming that he signed the termination agreement, alleges that the termination of the contract was made under pressure of the club and under ‘undue influence and duress’. Moreover, the player alleges that he mistakenly understood that the payment of the amount of 250,000 was a settlement of the outstanding sign-on fee, and that therefore, he still is entitled to compensation for breach of contract.

20. On the other hand, the Chamber took note that the club denied all the player’s allegations, explaining that the player was never threatened with guns. Furthermore, the club states that it is of the firm opinion that the termination agreement in question was signed by the player without any type of coercion whatsoever and that the player even negotiated, together with his agent, on the amount to be paid by the club. In addition, the club explained that on the same day, it paid the amount of 250,000 and that based on the contents of the termination agreement, the contract was validly terminated and the parties reached a final settlement. As a result of the foregoing, the club rejects the claim lodged against it.

21. Subsequently, the DRC observed that the player, in spite of having been invited to do so, had, for its part, failed to timely present his replica to the response of the club within the relevant time limit set by FIFA, i.e. 9 July 2017. In fact, the replica of the player was only received on 24 July 2017. As a result, bearing in mind the Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3 of the Procedural Rules, the Chamber decided not to take into account the replica of the player and established that, in accordance with the aforementioned provision, it shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the player in his claim dated 23 February 2017 and the statements and documents presented by the club in its responses dated 14 April and 29 May 2017.

22. In this regard, reiterating the contents of art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the DRC took into account that the player failed to present documentary evidence in support of his allegation that he had been coerced, by the club, into signing the non-specified document, as well as the termination agreement on 14 January 2017. In his claim, the player only submitted a description of the alleged events, however without providing documentary evidence or further clarifications, on the basis of which it could be established that the club put the player under pressure in order to sign the non-specified document and the termination agreement.

23. What is more, the members noted that the club, on the other hand, explained that the player and his agent negotiated on the phone with the club’s president about the contents of the termination agreement, in the end agreeing upon an amount of 250,000 to be paid by the club. Said circumstances were not further contested by the player. In addition, the Chamber noted that the club submitted documentary evidence that it paid an amount of 250,000 to the player on 14 January 2017.

24. Consequently, based on the foregoing circumstances as well as the documentation on file, the DRC decided that the player’s allegations that he was forced by the club, under duress, to sign the termination agreement and the non-specified document, cannot be accepted and the contract was terminated by mutual consent on 14 January 2017.

25. With respect to the player’s allegation that he deemed that the amount of 250,000 was a settlement for the outstanding sign-on fee, and as a result of which the player holds that he is still entitled to compensation for breach of contract, the Chamber deemed it fit to emphasise that a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility. Furthermore, the Chamber was of the opinion that the waiver included in the termination agreement, stipulating that the payment of the amount of 250,000 would be considered as a settlement ‘in full and final’, is clear and unambiguous. Consequently, the Chamber concluded that also these arguments of the player could not be upheld.

26. Furthermore, as regards the player’s claim pertaining to an unspecified amount of general damages, the Chamber reiterated the legal principle of the burden of proof and noted that the player did not submit any evidence of having suffered the claimed ‘general damages’. In addition, the members of the Chamber noted that the claimed amount is not specified by the player. As a result thereof, the Chamber agreed that such claim is to be rejected, due to a lack of legal basis.

27. Finally, the Chamber decided to also reject the player’s claim for the reimbursement of the costs of a flight ticket, as the contract did not hold a clause stipulating that the club is obliged to pay for flight tickets of the player. As such, also this claim of the player is rejected, due to a lack of legal basis.

28. In the light of all of the above, and in particular bearing in mind the fact that the player signed the aforementioned termination agreement with a waiver included in it, the Dispute Resolution Chamber decided that the claim put forward by the player is admissible, but has to be 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 rejected.

*****

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