F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision31 August 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 31 August 2017,

in the following composition:

Geoff Thompson (England), Chairman

Wouter Lambrecht (Belgium), member

Todd Durbin (USA), member

Theo van Seggelen (Netherlands), member

Takuya Yamazaki (Japan), member

on the matter between the player,

Player A, Country B,

as Claimant / Counter-Respondent

and the club,

Club C, Country D

as Respondent / Counter-Claimant

and the club,

Club E, Country B

as intervening party

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 23 July 2015, the Player of Country B, Player A (hereinafter: the player or the Claimant / Counter-Respondent), born on 1 May 1988, and the Club of Country D, Club C (hereinafter: the club or the Respondent / Counter-Claimant) concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 30 June 2018.

2. Pursuant to art. 5 of the contract, the Claimant / Counter-Respondent was entitled to receive the following remuneration:

- 2015-16 season:

 USD 1,000 as monthly salary;

 USD 208,000 as “sign-on fee and performance bonus” payable as follows:

 USD 100,000 upon reception of the International Transfer Certificate;

 USD 54,000 on 30 January 2016;

 USD 54,000 on 30 April 2016;

- 2016-17 season:

 USD 1,000 as monthly salary;

 USD 213,000 as “sign-on fee and performance bonus” (free translation) payable as follows:

 USD 71,000 on 30 September 2016;

 USD 71,000 on 31 December 2016;

 USD 71,000 on 30 April 2017;

- 2017-18 season:

 USD 1,000 as monthly salary;

 USD 213,000 as “sign-on fee and performance bonus” payable as follows:

 USD 71,000 on 30 July 2017;

 USD 71,000 on 31 December 2017;

 USD 71,000 on 30 April 2018.

3. Art. 5 of the contract further specifies that “if [the club] fails to comply with the payment deadlines mentioned above, within 24 hours for the first instalment of the sign-on fee, and 14 working days for the other bonuses, the player’s contract will be automatically terminated” (free translation).

4. Besides, art. 11 of the contract reads as follows:

“The club establishes in writing the disciplinary rules applicable to the players in the internal regulations of the club.

In case of violation of one of those rules or contractual obligations by the player, the latter can be imposed the sanctions and fines foreseen in the sanction scale of the club, the content of which the player declares being aware of” (free translation).

5. Moreover, art. 14 of the contract states, inter alia, that “[i]n case of claim or disputes arising out of the execution and/or interpretation of the clauses of the present contract, the parties shall resort with priority to the means and procedures aimed at solving the dispute amicably” (free translation).

6. On 5 February 2016, the player requested the club to pay the bonus due on 30 January 2016.

7. On 29 June 2016, the player informed the club of the automatic termination of the contract pursuant to “the relevant clauses and provisions in the contract”. In particular, the player emphasised that the payment due on 30 April 2016 had not been paid yet.

8. On the same date, the club replied to the player’s correspondence, informing the latter that two fines of 600,000 and of 13,000 respectively had been imposed on him on 8 June 2016 due to his unauthorised absence since 22 May 2016 in accordance with art. 11 of the contract. In this regard, the club informed the player that he had a deadline of 10 days to challenge the decision before the NDRC of Country D.

9. On 5 July 2016, the player rejected the sanction and reiterated that the contract had been terminated automatically before he left Country D.

10. On 15 September 2016, the Claimant / Counter-Respondent lodged a claim in front of FIFA against the Respondent / Counter-Claimant for breach of contract, requesting the following:

- USD 54,000 as outstanding remuneration, plus 5% interest per year as from 30 April 2016;

- USD 455,000 as compensation for breach of contract, plus 5% interest per year as from 30 April 2016.

- The imposition of a sanction on the club;

- To order the club to bear the legal and procedural costs.

11. In his claim, the Claimant / Counter-Respondent explains that in spite of the Respondent / Counter-Claimant’s failure to pay his rent as well as the instalments due on 30 January 2016 and 30 April 2016 on time, he continued to comply with his obligations in good faith until 30 May 2016. In this regard, the Claimant / Counter-Respondent alleges that on that date, the club’s president informed him that he would not be paid the instalment due on 30 April 2016 and was free to leave the club.

12. In continuation, the Claimant / Counter-Respondent states that on 8 August 2016, he entered into an employment contract with the Club of Country F, Club G. The Claimant / Counter-Respondent however asserts that the Respondent / Counter-Claimant rejected to issue the ITC and requested the payment of USD 30,000, amount that he and Club G refused to pay. Equally, the Claimant / Counter-Respondent points out that the Respondent / Counter-Claimant did not register him for the new season. Therefore, the Claimant / Counter-Respondent concludes that he remained without club due to the Respondent / Counter-Claimant’s behaviour.

13. On 20 October 2016, the Respondent / Counter-Claimant replied to the claim and lodged a counterclaim against the Claimant / Counter-Respondent, requesting the following:

- USD 455,000 as compensation for breach of contract, plus 5% as from 1 July 2016;

- The imposition of a sanction on the player;

- To order the player to bear the procedural costs.

14. In its counterclaim, the Respondent / Counter-Claimant explains that as from 22 May 2016, the Claimant / Counter-Respondent stopped attending training sessions and left the country on 1 June 2016 without authorisation, which is the reason why a disciplinary sanction was imposed on 8 June 2016. In this regard, the Respondent / Counter-Claimant insists that, taking into accounts the fines, the Claimant / Counter-Respondent had received, until his departure, 2,154,000 corresponding to all his dues. In particular, regarding the payment of the sign-on fee and performance bonuses, the Respondent / Counter-Claimant submitted the following documents:

- Receipt dated 23 September 2015 in the amount of 300,000;

- Receipt dated 23 September 2015 in the amount of 50,000;

- Receipt dated 15 October 2015 in the amount of 10,000;

- Receipt dated 27 October 2015 in the amount of 50,000;

- Bill of exchange dated 30 October 2015 in the amount of 200,000;

- Bank statement indicating a payment of 210,000 on 22 December 2015;

- Document dated 9 March 2016 by means of which the club instructed its bank to provision the player with 200,000;

- Bill of exchange dated 18 March 2016 in the amount of 350,000.

15. In continuation, the Respondent / Counter-Claimant argues that the Claimant / Counter-Respondent committed a second breach of contract by signing an employment contract with Club G. The Respondent / Counter-Claimant however alleges that it accepted in good faith to negotiate with Club G and agreed that the latter club would pay an amount of USD 30,000 to transfer the Claimant / Counter-Respondent. Having reached this agreement, the Respondent / Counter-Claimant states that it uploaded the relevant information and documentation in TMS, but Club G eventually cancelled the instruction. Regarding the lack of registration, the Respondent / Counter-Claimant outlines that it would not have made any sense to register a player that was absent and about to be transferred to Country F.

16. In his replica, the Claimant / Counter-Respondent highlights that the documentation presented by the Respondent / Counter-Claimant demonstrated that since the very beginning, the latter failed to comply with the payment deadlines stipulated in art. 5 of the contract.

17. Furthermore, the Claimant / Counter-Respondent points out that the Respondent / Counter-Claimant did not attempt to communicate with him after his departure.

18. The Claimant / Counter-Respondent further stresses that the fines should be disregarded. The Claimant / Counter-Respondent first outlines that the disciplinary decision was taken in violation of his right to be heard since he was not informed of the proceedings and therefore could not present his defence. Furthermore, the Claimant / Counter-Respondent asserts that the decision was actually made on 29 June 2016 and then backdated. Equally, the Claimant / Counter-Respondent argues that the fines refer to alleged breaches that occurred after the termination of the contractual relationship. Moreover, the Claimant / Counter-Respondent emphasises that in any case the amount of the fines is clearly disproportionate.

19. In addition, the Claimant / Counter-Respondent alleges that he lost his position in the senior national team due to the club.

20. In continuation, the Claimant / Counter-Respondent emphasises the incoherence of the Respondent / Counter-Claimant’s counterclaim, which is claiming USD 455,000, whereas it was ready to transfer him for USD 30,000.

21. In its final comments, the Respondent / Counter-Claimant asserts that considering the fines as well as the date of his departure, the Claimant / Counter-Respondent received an overpayment amounting to 320,600.

22. Furthermore, the Respondent / Counter-Claimant emphasises that the Claimant / Counter-Respondent was given the possibility to appeal the disciplinary decision but voluntarily refused to do so. In this regard, the Respondent / Counter-Claimant stresses that the decision of the NDRC of Country D could have been appealed before FIFA.

23. In continuation, the Respondent / Counter-Claimant questions why the Claimant / Counter-Respondent did not resort to the procedure established in art. 14 of the contract before leaving the club (cf. point 5 above).

24. On 1 September 2016, the Claimant / Counter-Respondent and the Club of Country B, Club E, concluded an employment contract, valid as from the date of signature until 30 August 2018 and in accordance with which he is entitled to a monthly salary of 1,000 (approx. USD 250). Furthermore, on 9 February 2017, the Claimant / Counter-Respondent and the Club of Country B, Club H, concluded an employment contract valid for one year and providing for a monthly remuneration of 3,000 (approx. USD 700).

25. Having been invited to do so, Club E explains that it decided to offer a contract to the Claimant / Counter-Respondent to relaunch his career after making sure that the contractual relationship between him and the club had been terminated. In this regard, Club E stresses that it was not involved at all in the termination.

26. Finally, on 22 March 2017, the Claimant / Counter-Respondent submitted unsolicited additional comments.

27. According to TMS, on 7 August 2017, the player, the club and Club G signed a transfer agreement, in accordance with which the parties agreed on the transfer of the player from the club to Club G in exchange for the payment of USD 30,000.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 20 October 2016. 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 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), 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, a Club of Country D and a Club of Country B.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber 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 claim of the Claimant / Counter-Respondent was lodged on 20 October 2016, the 2016 edition of the aforementioned regulations (hereinafter: the 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, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts 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. Subsequently, the DRC observed that the Claimant / Counter-Respondent had presented additional comments in spite of not having been invited to do so. 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 additional comments of the Claimant / Counter-Respondent submitted on 22 March 2017.

6. Having established the above, the DRC firstly acknowledged that the Claimant / Counter-Respondent and the Respondent / Counter-Claimant had signed an employment contract on 23 July 2015, valid until 30 June 2018.

7. In continuation, the Chamber noted that the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant maintaining that the contract was automatically terminated due to the Respondent / Counter-Claimant’s failure to pay the down payment payable on 30 April 2016 in accordance with art. 5 of the contract.

8. Thereafter, the DRC took note that the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent alleging that the latter left the country on 1 June 2016 without authorisation, which constitutes, in its opinion, a breach of contract.

9. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant / Counter-Respondent and the counterclaim of the Respondent / Counter-Claimant, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Claimant / Counter-Respondent, and which party was responsible for the early termination of the contractual relationship in question.

10. In this context, the Chamber recalled the content of art. 5 of the contract which stipulates that “if [the club] fails to comply with the payment deadlines mentioned above, within 24 hours for the first instalment of the sign-on fee, and 14 working days for the other bonuses, the player’s contract will be automatically terminated”.

11. In this respect, the Chamber deemed it important to highlight that this type of clause, which provides for a specific definition of the just cause, must interpreted strictly. With this in mind, the Chamber wished to emphasise that the Claimant / Counter-Respondent himself acknowledged that he remained with the Respondent / Counter-Claimant until the end of the month of May 2016, i.e. more than 14 working days after the due date of the alleged outstanding payment. In view of the above, and considering that the deadline established in the aforesaid clause was not complied with, the Chamber came to the conclusion that the Claimant / Counter-Respondent could not rely on art. 5 of the contract in order to terminate the contractual relationship. Indeed, in the Chamber’s view, this would constitute a violation of the principle of venire contra factum proprium.

12. Having stated the above, the Chamber actually noted that on 7 August 2016, the Claimant / Counter-Respondent and the Respondent / Counter-Claimant co-signed the transfer agreement concluded with Club G, thereby demonstrating that they still considered themselves bound by the contract. In the Chamber’s opinion, on that date, the Claimant / Counter-Respondent and the Respondent / Counter-Claimant clearly and unequivocally expressed their intention not to continue with the contractual relationship. In this regard, the Chamber was eager to point out that although the transfer did not go eventually through, both parties behaved as if they had been released from the contractual link.

13. In light of the foregoing, the Chamber held that both parties, by their respective behaviour, manifestly expressed their intention of being no longer bound by the contractual relationship and therefore concluded that none of them could be held liable for the early termination of the contractual relationship.

14. Having established the above, the DRC reverted to the Claimant / Counter-Respondent’s claim for outstanding remuneration. In this respect, the Chamber observed that the Claimant / Counter-Respondent argues that the Respondent / Counter-Claimant failed to pay him the outstanding payment due on 30 April 2016.

15. The Chamber noted that the Respondent / Counter-Claimant, for its part, asserts that the Claimant / Counter-Respondent’s remuneration was reduced by means of two fines imposed on him on 8 June 2016 due to his unjustified absence as from 22 May 2016.

16. At this point and for the sake of good order, the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof.

17. In relation to the above-mentioned fines, the DRC noted that the Claimant / Counter-Respondent claims never having been informed of the existence of any pending fines against him and that those penalties were, consequently, the result of a unilateral procedure. The Chamber further observed that the Respondent / Counter-Claimant was unable to provide any type of evidence regarding the Claimant / Counter-Respondent’s due participation in the proceedings leading to the imposition of said fines.

18. In view of the foregoing, the Chamber deemed that, in the absence of substantial evidence with regard to the existence of the alleged fines and of the player’s participation in such proceedings, it could not be taken into account in order to justify the non-payment of part of the remuneration of the Claimant / Counter-Respondent.

19. In this context, and irrespective of the foregoing consideration, the Chamber was eager to emphasise that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the Respondent / Counter-Claimant’s argument in this regard.

20. In continuation, the Chamber deemed it important to outline that in spite of being still contractually bound to the Respondent / Counter-Claimant until August 2016, it remains uncontested that the Claimant / Counter-Respondent did not render any service to the latter between June and August 2016. As a consequence, and in virtue of the principle of exceptio non adimpleti contractus, the Chamber held the Respondent / Counter-Claimant was entitled to retain the Claimant / Counter-Respondent’s salaries for the aforesaid period and therefore decided not to award any amount to the Claimant / Counter-Respondent in this respect.

21. In view of the above, in accordance with the principle of pacta sunt servanda, the Chamber decided that the Respondent / Counter-Claimant is liable to pay the Claimant / Counter-Respondent the amount of USD 54,000 corresponding to the down payment due on 30 April 2016.

22. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of USD 54,000 as from 1 May 2016 until the date of effective payment.

23. Consequently, the Chamber decided to partially accept the Claimant / Counter-Respondent’s claim, and to reject the Respondent / Counter-Claimant’s counterclaim.

24. Finally, the DRC concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant / Counter-Respondent is rejected.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.

2. The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected.

3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 54,000 plus 5% interest p.a. on said amount as from 1 May 2016 until the date of effective payment.

4. In the event that the amount plus interest due to the Claimant / Counter-Respondent in accordance with the above-mentioned point 3. is not paid by the Respondent / Counter-

Claimant 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 / Counter-Respondent is rejected.

6. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant 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.

*****

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