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

between the parties

I. Facts of the case

1. On 1 August 2017, the player of Country B, Player A (hereinafter: the player) and the club of Country D, Club C (hereinafter: the club) concluded an employment contract valid as from 1 August 2017 until ‘the end of the football season 2017/2018’ (hereinafter: the contract).

2. According to articles 17, 18 and 21 of the contract, the player was entitled to receive a total amount of USD 25,000, payable as follows:

- a monthly salary of USD 2,000, due at the end of every ‘Gregorian month’;

- a ‘signing up contract fee for every season’, in the amount of USD 5,000.

3. On 5 October 2017, the player lodged a claim before FIFA against the club, claiming payment of the total amount of USD 25,000 as ‘value of the contract’, as well as to apply sanctions in the sense of art. 12bis of the FIFA Regulations against the club.

4. In his claim, the player explains that on 6 September 2017, the club unilaterally terminated his contract with immediate effect ‘for the reason of low technical level’.

5. In addition, the player explains he deemed this termination was made without just cause, and that on 12 September 2017, he put the club in default and requested for the payment of the contractual value in the amount of USD 25,000, however to no avail.

6. Despite being invited to do so, the club did not reply to the claim of the player.

7. Finally, after having been requested to do so, the player informed FIFA that after the termination of the contract on 6 September 2017, he remained unemployed.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 5 October 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: 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 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (editions 2016 and 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 (editions 2016 and 2018), and considering that the present claim was lodged on 5 October 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. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber recalled that on 1 August 2017, the parties had signed an employment contract, valid for the 2017/2018 season, on the basis of which the player was entitled to receive the total amount of USD 25,000, payable in 10 instalment of USD 2,000 each, as well as sign-on fee of USD 5,000.

6. In continuation, the members of the Chamber noted that the player lodged a claim against the club, maintaining that the club, on 6 September 2017, had unilaterally terminated the employment contract without just cause, due to his alleged poor performance and ‘low technical level’. After having put the club in default on 12 September 2017 and having asked for being paid the residual value of the contract, however to no avail, the player lodged a claim before FIFA, claiming to be awarded compensation for breach of the employment contract.

7. Subsequently, the DRC observed that the club, in spite of having been invited to do so, had failed to present its reply to the claim of the player. Consequently, the Chamber deemed that the club had renounced to its right of defence and, thus, had accepted the allegations of the player.

8. As a consequence of the aforementioned consideration, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the player.

9. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute was to determine whether the contract had been terminated by the club on 6 September 2017 with or without just cause, and subsequently, to determine the consequences of the early termination of the contractual relationship by the club.

10. First of all, the Chamber noted that the parties concluded a valid and legally binding employment contract on 1 August 2017, valid for the 2017/2018 season, which circumstances remained uncontested by the club in the context of the current proceedings. However, considering the circumstances described by the player in his claim regarding the termination of the contract by the club on 6 September 2017 as well as the termination provided by the player, the Chamber noticed that the club decided to unilaterally terminate the contract with the player because it apparently was not satisfied with the player’s skills and sporting performance.

11. In this respect, the members of the Chamber wished to emphasise that the alleged unsatisfactory performance of a player, is a purely unilateral and subjective evaluation made by the club. Taking into account the Chamber’s longstanding and well-established jurisprudence in this respect, said circumstances cannot by any means be considered as a valid reason to terminate the contract of a player, as they are the result of a purely subjective perception, not measurable in objective criteria.

12. On account of all the aforementioned considerations, in particular in view of the considerations under points II./10. and II./11. above, the Chamber established that the club had no valid reasons to unilaterally terminate the contract concluded with the player on 1 August 2017. Consequently, the Chamber concluded that the club had to be held responsible for the legal consequences of said termination.

13. 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 club.

14. First of all, the members of the Chamber concurred that the club must fulfill its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, and taking into account that the player alleged that on 6 September 2017, he had not received from the club any of the amounts he was entitled to, the Chamber decided that the club is liable to pay to the player the remuneration that was outstanding at the time of the termination, i.e. the amount of USD 7,000, consisting of one monthly salary of USD 2,000 for the month of August 2017, due on 31 August 2017, as well as the sign-on fee in the amount of USD 5,000, which had fallen due on 1 August 2017.

15. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from the club compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract.

16. 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.

17. 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.

18. Subsequently, and in order to evaluate the compensation to be paid by the club, the members of the Chamber took into account the remuneration due to the player in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the player after the early termination occurred.

19. In this respect, the Chamber pointed out that at the time of the termination of the employment contract on 6 September 2017, the contract would run until the end of the 2017/2018 season, which ends according to the information in the TMS on 1 May 2018, in which nine instalments of USD 2,000 each were still to be paid to the player. Consequently, taking into account the financial terms of the contract, the Chamber concluded that the remaining value of the contract as from its early termination by the club until the regular expiry of the contract amounts to USD 18,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

20. In continuation, the Chamber verified as to whether the player 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 player’s general obligation to mitigate his damages.

21. However, the Chamber noted that the player did not find new employment with another club during the relevant period of time and established that as a result thereof, no amounts shall be deducted from the amount of compensation for breach of contract as claimed by the player.

22. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of USD 18,000 to the player, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

23. In conclusion, the DRC decided that the club is liable to pay the total amount of USD 25,000 to the player, consisting of the amount of USD 7,000 corresponding to the player’s outstanding remuneration at the time of the unilateral termination of the contract without just cause by the club and the amount of USD 18,000, corresponding to compensation for breach of contract without just cause.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent, Club C, has to pay to the Claimant within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 7,000.

3. The Respondent has 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 USD 18,000.

4. In the event that the amounts 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, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. 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