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 29 March 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 March 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Roy Vermeer (The Netherlands), member

Alexandra Gómez Bruinewoud (Uruguay), member

Joel Talavera (Paraguay), member

Wouter Lambrecht (Belgium), 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 1 July 2015, the player of Country B, Player A (hereinafter: the Claimant), and the club of Country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract), valid as from 1 August 2015 until 30 May 2016.

2. In accordance with the contract, the Claimant was entitled, inter alia, to the amount of EUR 10,000 payable in ten monthly instalments of EUR 1,000, “the first payment payable on the 31st of August 2015 for the amount of EUR 1,000. - and there after the amount of EUR 1,000. - on the 31st of each following working month until the end of the employment period 2015 – 2016 and until full payment of the salary”.

3. Moreover, the contract stipulated that “[The Claimant] accepts to give to the employer grace period of forty five days to pay his working month”.

4. Art. 19 of the contract established that “Both parties agree that the forum for the resolution and or adjudication of any disputes between the parties in relation to the present agreement is the Football Association of Country D, Dispute Resolution Committee and FIFA”.

5. According to the Claimant, on 9 July 2015, the parties signed a document titled “Supplementary Agreement for Contract of Employment Dated 07/06/2015” (hereinafter: the supplementary agreement). In accordance with the supplementary agreement, the parties, allegedly “agreed that the terms and conditions of the present agreement are over and above the agreement dated 1 July 2015”.

6. The supplementary agreement established that the Claimant was entitled, inter alia, to the amount of EUR 30,000 payable in ten monthly instalments of EUR 3,000,“the first payment payable according to the supplementary agreement on the 31st of August 2015 for the additional amount of EUR 3,000. - and thereafter the amount of EUR 3,000. - on the 31st of each following working month until the end of the employment period 2015 – 2016 and until full payment of the above additional salary”. Moreover, the supplementary agreement stipulated that “that the present contract dated 01/07/2015 will be no more than EUR 40,000.- total for [both agreements]. [The Claimant] accepts to give to [the Respondent] grace period of forty five days to pay his working month”.

7. On 12 January 2016, the Respondent sent a letter to the Football Association of Country D, where it unilaterally terminated the contract “due to the breach of the agreement dated 01/07/2015 by [the Claimant]… [the Claimant] is unreasonable absent from trainings of the team from 28/12/2015”.

8. On 2 February 2016, the Claimant sent a correspondence to the Football Association of Country D requesting information about his registration with the Respondent.

9. On the same date, i.e. 2 February 2016, and on 4 February 2016, the Claimant put the Respondent in default for the amount of EUR 8,000, pertaining to the allegedly unpaid salaries of December 2015 and January 2016.

10. On 5 February 2016, in reply to the Claimant’s requests, the Respondent sent the Claimant a correspondence indicating that by means of the letter dated 12 January 2016 (cf. point I./7 above), it has unilaterally terminated the Claimant’s contract due to his “unreasonable and unprofessional behavior”. Moreover, in accordance with the letter dated 5 February 2016, the Respondent argued that the Claimant was absent, without providing any justification or reason, and that it tried to contact the Claimant “either directly, either through your agent, send him a correspondence dated 29.12.2015, however you have ignored the invitations and unreasonably have not attended to the training”. In accordance with this letter, the Respondent informed the Claimant that the salary of December 2015 was at its offices for collection.

11. By means of correspondence dated 8 February 2016, the Football Association of Country D informed the Claimant that “[the Respondent], terminated the contract between [the Claimant] and [the Respondent] on 12 January 2016”.

12. Subsequently, on 9 February 2016, the Claimant sent a correspondence to the Respondent acknowledging receipt of its correspondence dated 5 February 2016, where he stated, inter alia, that this letter was the first official information he received from the Respondent and emphasizing“[I] want to make it clear that I have no agent, so I have no idea who received the correspondence dated 29 December 2015… I was at Country D the whole period from the 28 December 2015 till the present time…” Finally, the Claimant put the Respondent in default for the outstanding salary of December 2015.

13. On 4 April 2016, the Claimant lodged a claim in front of FIFA against the Respondent requesting the following:

- EUR 5,548 as outstanding remuneration, corresponding to the monthly salary of December 2015 as well as to 12 days of January 2016, plus 5% interest p.a. as from 13 January 2016;

- EUR 46,452 as compensation for the unilateral termination of the contract by the Respondent without just cause, plus 5% interest p.a. from 13 January 2016, amount that was broken down as follows:

 EUR 22,452 corresponding to the residual value of the contract and the supplementary agreement.

 EUR 24,000 corresponding to “specificity of sport”;

- Sporting sanctions to be imposed to the Respondent; and - Procedural costs.

14. With those consideration in mind, in his claim, the Claimant claimed that “[the Respondent] terminated the contract without just cause (because there were no violations of the contract [on his part]) and without any notifications sent to [the Claimant], while [the Respondent] had breached the contract severely several times… causing damages to his financial situation and to his career reputation”.

15. Moreover, the Claimant insisted that the Respondent did not provided him with an original copy of the contract and the supplementary agreement.

16. On its reply, the Respondent challenged the competence of FIFA to deal with the present matter as it argued that art. 19 of the contract gives “compatibility of the Football Association of Country D dispute resolution bodies”. Furthermore, it stated that FIFA should take into account:

- The Football Association of Country D dispute resolution bodies comply with the requirements established by FIFA; and

- “The dispute has arisen in Country D, between members of the Football Association of Country D”.

17. As to the substance, the Respondent rejected the claim.

18. In line with the above, the Respondent sustained that it only concluded the contract and that it never signed the alleged supplementary agreement and that those agreements are invalid according to the Football Association of Country D.

19. Moreover, the Claimant sustained that it terminated the contract with just cause, according to FIFA’s well established jurisprudence “due to the unreasonable and unauthorized and without justification notification absent of the Claimant”, being this an objective criteria not to continue with the employment contract. Having said that, the Respondent argued that the Claimant along with two other teammates, left Country D without any previous authorization as from 28 December 2015.

20. In this regard, the Respondent held that it tried to contact the Claimant and to this end, provided a copy of the letters dated 29 December 2015 and 31 December 2015, which were sent to the Claimant’s alleged agent, Agent E, inviting the agent to tell the players to return to the trainings immediately for the first game of the year, emphasizing “in case of not return of the players until tomorrow, my client will take all the actions against your clients, as provided by the FIFA and Football Association of Country D regulations”.

21. Furthermore, the Respondent acknowledged owing the Claimant’s salary of December 2015. Nevertheless, it argued that the amount requested by the Claimant is unreasonable since “the Claimant has not deducted the amount which is payable by the Respondent in behalf of him to the Country D Government”.

22. In his replica, the Claimant insisted in his claim and in FIFA’s competence to deal with the matter at hand, emphasizing that:

- The dispute between the parties is an employment related dispute with international dimension.

- Art. 19 of the contract is ambiguous and non-exclusive and explicitly mentions FIFA.

- The NDRC of the Football Association of Country D does not comply with the FIFA Regulations.

23. Furthermore, the Claimant rejected the Respondent’s argumentation and sustained that he never received the letters of 29 December 2015 and 31 December 2015, and that he did not have an agent during that period. Moreover, the Claimant referred to the validity of the supplementary agreement, and insisted that the Respondent never provided him with a copy of the contract nor the supplementary agreement. In this regard, he stated that a monthly salary of EUR 1,000 “for an experienced and international player like him was disproportionate” and that he “was worthy of a far bigger salary, than stated in the contract, and there was another way of paying him by the [Respondent]. That is why [the Respondent] and [the Claimant] concluded [the supplementary agreement]”.

24. On that basis, and in order to support his argumentation that the parties indeed concluded the supplementary agreement, the Claimant provided the following:

- “National team statics of Country B of the Claimant;

- Statistics of the Claimant in the Respondent’s competitions;

- The values of the Respondent’s players in season 2015/2016;

- Announcement at the Respondent’s official Facebook profile;

- Publications on the Respondent’s website;

- Information on average salaries in the First Division of Country D; and

- Information on the salaries of Club F”.

25. On 13 June 2017, the Respondent’s duplica was received, i.e. after the time limit set by FIFA 12 June 2017, to submit it had expired. In this regard, the Respondent held having tried several times to send its final comments by fax before the expire of the time limit, but that, allegedly, it was not possible due to a fax problem.

26. After being requested by FIFA, the Claimant informed that he remained unemployed as of the date of termination i.e. 12 January 2016 until 25 August 2016, date in which he concluded an employment contract with the club of Country D, Club G.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 4 April 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the 2015, 2017 and 2018 editions of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 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, hereinafter: the Regulations) 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. The Chamber, however, acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 19 of the employment contract (hereinafter: the contract) alleging that the Football Association of Country D deciding bodies are competent to deal with the present matter.

4. In this regard, the Chamber noted that the Claimant insisted on the competence of FIFA to adjudicate on the claim lodged by him against the Respondent. The Claimant argued that the competence of FIFA is undeniable on the basis that art. 19 of the contract is ambiguous, non-exclusive and explicitly mentions FIFA.

5. While analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should first and foremost, analyse whether the employment contract at the basis of the matter at stake actually contained a jurisdiction clause.

6. Having established that, the members of the Chamber turned their attention to art. 19 of the contract, which stipulated that “both parties agree that the forum for the resolution and/or adjudication of any disputed between the parties in relation to the present agreement is the Football Association of Country D, Dispute Resolution Committee and FIFA”.

7. In view of the aforementioned, the members of the DRC were of the opinion that art. 19 of the contract does not make clear reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the abovementioned Regulations and even provides for the possibility of lodging a contractual dispute in front of FIFA. Therefore, the members of the Chamber deemed that said clause can by no means be considered as a clear arbitration clause in favour of the Football Association of Country D deciding bodies, and therefore, cannot be applicable. In this respect, the DRC pointed out that this lack of clarity is also reflected in the Respondent’s argumentation, since it did not specify which specific national deciding body would be competent.

8. Having established that the first criterion for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the Chamber deemed unnecessary to examine any further points which would need to be assessed before concluding to the competence of a national deciding body.

9. In view of the all the above, the members of the DRC established that the Respondent’s objections to the competence of FIFA to deal with the present matter had to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations, to consider the present matter as to the substance.

10. Subsequently, the DRC 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 par. 2 of the Regulations on the Status and Transfer of Players (editions 2015, 2016 and 2018), and considering that the present claim was lodged on 4 April 2016, the 2015 edition of the Regulations is applicable to the matter at hand as to the substance.

11. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on 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 matter at hand.

12. Having said this, the DRC acknowledged that although the Claimant was unable to provide a copy of the contract, it was uncontested by the Respondent that said contract was concluded between the parties, valid as from 3 August 2015 until 30 May 2016, and in accordance with which the Claimant was entitled to EUR 10,000, payable in 10 consecutively monthly instalments of EUR 1,000 on the 31st of each month, beginning on 31 August 2015.

13. In continuation, the Chamber observed that according to the Claimant, the parties signed a supplementary agreement of the contract by means of which it was established that the Claimant would be entitled to the amount of EUR 30,000, payable in 10 consecutively monthly instalments of EUR 3,000 on the 31st of each month.

14. Subsequently, the members of the Chamber took note that the Claimant lodged a claim against the Respondent, maintaining that the latter had unilaterally terminated the employment relationship without just cause. Consequently, on the basis of the contract and the alleged supplementary agreement, the Claimant requested to be awarded with outstanding remuneration and compensation for breach of contract.

15. In this regard, the DRC took particular note that on its reply, the Respondent rejected the claim and held that it only concluded the contract with the Claimant and that it never signed the alleged supplementary agreement. Moreover, the Respondent sustained that it terminated the contract with just cause since, according to it, the Claimant did not come back after he had been informed of an unauthorized absence.

16. On account of the aforementioned, in particular in view of the circumstances, before entering into the question if the employment relationship had been terminated with or without just cause, the Chamber pointed out that it first of all had to clarify the existence of the supplementary agreement and if it could be taken into account in the present matter.

17. In this context, the Chamber observed that the Claimant argued that the Respondent never provided him with a signed copy of the alleged supplementary agreement. Furthermore, the Claimant held that otherwise, his salary would be too low for a player of his profile. In this respect, the Claimant submitted documentation to support his argumentation regarding the conclusion of the supplementary agreement.

18. To that end, after a thoroughly examination, the members of the DRC unanimously decided that the documentation provided by the Claimant was not conclusive enough to determine the validity of the alleged supplementary agreement, nor that it is sufficient to establish that the parties were bound under the terms described in the unsigned copy of the alleged supplementary agreement. In this regard, the DRC considered that the employment relationship had been running for more than six months, therefore, the Claimant could have presented conclusive evidence to prove his allegation.

19. Consequently, the Chamber decided that the alleged supplementary agreement could not be taken into account.

20. Subsequently, and in view of the foregoing, the DRC entered into the question to determine the date the contract was terminated by the Respondent, as well as to establish if the respondent had or did not had just cause to terminate the employment relationship with the Claimant.

21. In this context, the members of the Chamber established that the Respondent terminated the employment relationship with the Claimant on 5 February 2016, date that the player was notified about the termination of the employment relationship.

22. Furthermore, the DRC recalled the Respondent’s argumentation by means of which it held having terminated the contract with just cause since, allegedly, the player did not come back after he had been informed by the Respondent about an unauthorized absence.

23. In this regard, the Chamber noted that the Claimant contested being absent and sustained not having received the Respondent’s alleged letter. Having said that, the Claimant emphasized that he did not have an agent at the time, and that as a consequence he could not be notified through the alleged agent.

24. In the light of this, the members of the DRC referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis if an alleged fact shall carry the respective burden of proof. In this respect, the Chamber observed that the Respondent did not present any document regarding the absence of the Claimant and the existence of his alleged agent.

25. Therefore, the Chamber concluded that the Respondent did not submit conclusive and satisfactory evidence that could prove that the Claimant was indeed absent and that he was duly informed by the Respondent through the alleged agent.

26. On account of thee above, the members of the Chamber decided that the Respondent had no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, concluded that the Respondent had terminated the contract without just cause on 5 February 2016 and that, therefore, the Respondent is to be held liable for the early termination of the employment relationship without just cause.

27. Bearing in mind the previous consideration, the DRC went to deal with the consequences of early termination of the employment contract without just cause be the Respondent.

28. Consequently, the Chamber concurred that the Respondent must fulfil 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”. As a result, the DRC decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination of the employment relationship i.e. the amount of EUR 2,000 for the monthly salaries of December 2015 and January 2016.

29. In addition, taking into account the Claimant’s claim and the Chamber’s constant jurisprudence in this respect, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on outstanding as from the day of the termination of the contract i.e. 5 February 2016.

30. In continuation, the DRC 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 contract.

31. 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 Claimant 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.

32. 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 respect, the DRC established that no such compensation clause was included in the contract at the basis of the matter at stake.

33. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the DRC took into account the remuneration due to the Claimant in accordance with the contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this regard, the Chamber pointed out that at the time of the termination of the employment relationship on 5 February 2016, the contract would run for another 4 months, equivalent to the same number of monthly instalments to be paid. Consequently, taking into account the financial terms of the contract and the supplementary agreement, the Chamber concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amount to EUR 4,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

34. In this context, the Chamber assessed 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 player’s general obligation to mitigate his damages.

35. In this respect, the Chamber acknowledged that the Claimant had not signed any employment contract during the relevant period of time, i.e. before 30 May 2016.

36. Consequently, the Dispute Resolution Chamber concluded that the Claimant was entitled to compensation for breach of the employment contract in the amount of EUR 4,000, which is considered by the DRC, to be a reasonable and justified amount as compensation.

37. In addition, taking into account the Claimant’s claim and the Chamber’s constant jurisprudence in this respect, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the compensation for breach of contract as from the submission of the claim.

38. Moreover, regarding the Claimant’s request for compensation of breach of contract regarding the specificity of sport, the DRC decided to reject this request, as the request had no contractual basis.

39. Furthermore, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

40. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

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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, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 2,000 plus 5% interest p.a. on said amount as from 5 February 2016 until the date of effective payment.

4. 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 EUR 4,000, plus 5% interest p.a. on said amount as from 4 April 2016 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 points 3. and 4. 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.

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.

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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

CH-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