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 19 April 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 19 April 2018,

in the following composition:

Geoff Thompson (England), Chairman

Takuya Yamazaki (Japan), member

Tomislav Kasalo (Croatia), member

Daan de Jong (The Netherlands), member

Abu Nayeem Shohag (Bangladesh), 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 11 June 2016, 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) entered into an employment contract (hereinafter: the contract) valid as from 11 June 2016 until 31 December 2018.

2. According to the contract, the Claimant was entitled to receive from the Respondent a monthly salary of EUR 51,500 payable “not later than the first decade of the next month”.

3. On 23 May 2017, the Respondent wrote an e-mail to the Claimant whereby the former unilaterally terminated the employment contract “due to [the Claimant’s] continuous unauthorised absence from work for a period of 4 weeks (28 days) in total, counted as of 24 April 2017…”

4. On 28 September 2017, the Claimant lodged a claim against the Respondent in front of FIFA, requesting payment of the following monies:

- EUR 51,500 as outstanding salary for the month of April 2017;

- EUR 1,030,000 as compensation for breach of contract, corresponding to the residual value of the contract (20x EUR 51,500);

- EUR 309,000 as additional compensation for “unjust Contract’s termination”.

Furthermore, the Claimant requested interest of 5% p.a. as of “each due date”.

5. In particular, the Claimant explained that already in December 2016, the executive director of the Respondent informed him that the club “does not count on him anymore”. In support of his position, the Claimant submitted an online printout out of a newspaper of Country D with an article about the alleged club’s decision to release him. In the same vein, the Claimant argued that during the month of January 2017, he was not allowed to join the team for its training camp in City G and was forced to train alone until the end of March 2017.

6. The Claimant continued claiming that during the month of March 2017, he was called-up by the Football Federation of Country B; call-up which was refused by the Respondent as he was allegedly injured. The Claimant argued in this regard that eventually he joined the national team of Country B and that its medical team found that he was completely fit to play. In support of his assertion, the Claimant enclosed a medical report which concluded that the Claimant is “capable of all sport activity include full time football match…”.

7. Furthermore, the Claimant asserted that the Respondent failed to register him during the first registration period of the 2017 season of Country D, which ended on 1 April 2017, and that therefore he stopped being eligible to play for the club in the Championship of Country D.

8. The Claimant further stressed that the Respondent pressured him to mutually terminate the contract; offer which he refused. In particular, according to the Claimant, on 23 April 2017, he was reportedly physically threatened in the dressing room, when three people tried to force him to sign “some documents”. After this incident, the Claimant allegedly contacted the embassy of Country B in order to leave the country.

9. The Claimant continued explaining that the club’s executive director kept on negotiating the termination of the contract with his agent via email, without reaching an agreement. In support of his claim, the Claimant enclosed an exchange of emails between 24 April 2017 and 9 May 2017 from which it transpires that the parties’ representatives were trying to find an amicable solution. In particular, in said exchange, the Respondent’s executive director denied that the club was involved in the reported incident of 23 April 2017 and he proposed to loan the player to another club; proposal which remained unanswered by the Claimant’s agent.

10. In continuation, the Claimant maintained that the Respondent had no just cause to terminate the contract on 23 May 2017 due to his absence since he was already de-registered and would not have been eligible to play anyway. Moreover, the Claimant sustained that his de-registration at national level constitutes a material breach of contract by the club. What is more, the Claimant argued that he had reasons to be absent after the incident of 23 April 2017 since he feared for his life.

11. Finally, the Claimant stated that the Respondent failed to pay his salary for the month of April 2017.

12. On 23 October 2017, the FIFA Administration notified the claim of the Claimant to the Respondent and granted the latter a deadline to submit its reply until 12 November 2017, which was thereafter extended until 22 November 2017.

13. On 27 November 2017, the Respondent filed its answer to the claim.

14. On 15 December 2017, the FIFA Administration informed the Respondent that its reply had been filed after the deadline set in FIFA’s letter of 22 November 2017 and thus reminded the Respondent of the content of art. 9 par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber.

15. Finally, the Claimant informed FIFA that on 1 September 2017, he signed an employment contract with the club of Country E, Club F, valid as from 1 September 2017 until 31 December 2018, according to which he was entitled to a monthly salary of EUR 5,000 between 1 September 2017 and 30 June 2018 and of EUR 5,500 between 1 July 2018 and 31 December 2018.

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 28 September 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are 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 combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2018), 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 2018), and considering that the present claim was lodged on 28 September 2017, 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. The members of the Chamber started by acknowledging all 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 context, the Chamber acknowledged first that the parties concluded an employment contract valid as from 11 June 2016 until 31 December 2018, according to which the Respondent undertook to pay to the Claimant a monthly salary of EUR 51,500.

6. Furthermore, the members of the DRC noted that it remained undisputed that on 23 May 2017, the Respondent unilaterally terminated the contract due to the absence of the Claimant since 24 April 2017.

7. In continuation, the DRC proceeded to analyse the claim of the Claimant who argues that the Respondent did not have just cause to terminate the contract on 23 May 2017. In particular, the Chamber noted the allegation of the Claimant that, during December 2016 and January 2017, he was informed by the Respondent that it was not interested in his services any longer and was sent to train alone. What is more, the Chamber observed that, according to the Claimant, he was not registered for the 2017 season and was pressured by the management of the Respondent to sign an agreement in order to mutually terminate the contract.

8. At this point, the members of the Chamber recalled that the Respondent had filed its reply to the claim of the Claimant on 27 November 2017 only. This is, after the deadline set by the FIFA Administration, i.e. 22 November 2017. In this respect, the DRC referred to art. 9 par. 3 of the Procedural Rules which provides, inter alia, that “submissions received outside the time limit shall not be taken into account” (emphasis added).

9. Consequently, the members of the Chamber unanimously concluded that the reply of the club, filed after the expiration of the deadline, cannot be admitted to the file. As such, the DRC held that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the admissible documents. In other words, upon the statements and documents presented by the Claimant.

10. Having established the above, the Chamber wished to recalled its long standing and well-established jurisprudence which dictates that among a player’s fundamental rights under an employment contract is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches. Hence, by de-registering a player, a club is, in principle, effectively barring, in an absolute manner, the potential access of the player in question to competition and, as such, is violating one of his fundamental rights as a football player. To put it differently, the deregistration of a player constitutes, in general, a material breach of the contract which justifies its early termination.

11. With the afore-described principle in mind and referring to the circumstances surrounding the present matter as presented by the Claimant, the members of the Chamber outlined that it remained uncontested that the Respondent failed to register the Claimant during the first registration period of the 2017 season, which ended on 1 April 2017. As such and considering that, according to the information contained in the Transfer Matching System (cf. art. 6 par. 3 of Annexe 3 of the Regulations), the next registration period in Country D would be open until 13 June 2017, the members of the DRC highlighted that the player was to be deregistered for at least two and a half months, without the Respondent being able to remedy this material breach.

12. What is more, the DRC underlined that it also remained undisputed that since January 2017 the Claimant was sent to train by himself and that, according to the evidence presented by the Claimant, the Respondent publicly declared already in December 2016 that it was not interested in him as he was “prone to injuries”. Along these lines, the members of the Chamber were satisfied by the medical report presented by the Claimant, according to which, he was fit to play.

13. On account of all the foregoing, the members of the Chamber concluded that, considering the Claimant’s submission and the admitted evidence on file, the Respondent was not interested in the Claimant’s services any longer. As such, the Chamber held that the Respondent did not have just cause to terminate the contract on 23 May 2017 and that, consequently, the Respondent is to be held liable for said early termination of the contract.

14. 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.

15. In so doing, 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. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination of the contract.

16. Along those lines, the Chamber recalled that it also remained uncontested that the Respondent failed to pay to the Claimant his salary for the month of April 2017. As such, the DRC decided that the Respondent has to pay to the Claimant as outstanding remuneration his salary for said month, i.e. EUR 51,500.

17. The DRC further established that, considering the claim of the Claimant as well as its well-established jurisprudence, the Respondent has to pay interest on said amount of 5% p.a. as of 11 May 2017, until the date of effective payment.

18. 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.

19. 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.

20. 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.

21. Having recalled the aforementioned, 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 Claimant after the early termination occurred. In this respect, the Chamber pointed out that at the time of the termination of the contract, the remaining value of the contract as from its early termination by the Claimant until its regular expiry amounted to EUR 1,030,000 corresponding to the months as of May 2017 until December 2018. The Chamber concluded that this amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

22. 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.

16. In this context, the Chamber recalled that the Claimant concluded a new employment contract with the club of Country E, Club F, valid as from 1 September 2017 until 31 December 2018, according to which he was entitled to a monthly salary of EUR 5,000 between 1 September 2017 and 30 June 2018 and of EUR 5,500 between 1 July 2018 and 31 December 2018, i.e. a total of EUR 83,000.

17. On account of all the above, the Chamber concluded that the Claimant is entitled to receive from the Respondent compensation for breach of contract in the amount of EUR 947,000 which is considered by the members as a fair and justified amount as well as 5% interest p.a. over said amount as from the date of the claim, i.e. 28 September 2017, until the date of effective payment, in accordance with the Chamber’s long standing jurisprudence.

18. Finally, the members of the DRC concluded their deliberations by establishing that any further claim is rejected.

*****

III. Decision of the Dispute Resolution Chamber

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

2. 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 51,500 plus 5% interest p.a. as of 11 May 2017 until the date of effective payment.

3. 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 947,000 plus 5% interest p.a. as of 28 September 2017 until the date of effective payment.

4. 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 limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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

6. 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 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