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 15 February 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 February 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Stéphane Burchkalter (France), member

Philippe Diallo (France), member

Joseph-Antoine Bell (Cameroon), 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 18 June 2012, 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), concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 30 June 2016.

2. Pursuant to the contract, the Claimant was entitled to receive from the Respondent the following remuneration:

- For the season 2012/2013: a monthly salary of EUR 7,000 net;

- For the season 2013/2014: a monthly salary of EUR 8,000 net;

- For the season 2014/2015: a monthly salary of EUR 9,000 net;

- For the season 2015/2016: a monthly salary of EUR 10,000 net.

3. Furthermore, according to the contract, the Claimant was entitled to four round-trip flight tickets per season.

4. Art. I.3 of the contract reads, in its relevant part, as follows: “The player declares that he is aware of his obligations (…) resulting from the (…) legal regulations applicable in Country D and that he (…) shall perform his obligations properly (e.g. tax liabilities, liabilities towards Social Insurance, respective health insurance…)”.

5. Art. V.2 of the contract stipulates, inter alia, that “[t]he club has the right to: (…) grade the player to another club team (grading shall be decided by the Board of Directors)”.

6. In addition, art. VI states, inter alia, that “[t]he player is obliged to: (…)

- enter and complete each sporting activity on time and with maximum onset according to the club instructions and mainly during the comprehensive training process, matches of all kinds, to which he has been nominated and within other delegations and nomination of the club;

(…)

- notify the club immediately about any situation, which would hamper his performance of obligations resulting from the contract”.

7. Moreover, according to art. XI.2 of the contract, “[t]he governing law shall be the law applicable in Country D”.

8. Also on 18 June 2012, the Respondent issued a declaration, stating that it “will take the responsibility concerning the payment of the taxes and social security at the time of validity of the [contract]”.

9. On 11 September 2015, the Claimant requested the Respondent to pay him EUR 5,942.15 as “health insurance” which, according to the Claimant, the Respondent “promised” to pay by the end of June 2015.

10. On 1 October 2015, the Claimant requested the Respondent to allow him to train with the rest of the team.

11. On 25 January and 1 February 2016, the Claimant sent further correspondence to the Respondent whereby he put the Respondent in default of payment of his salary of the month of December 2015, his “health insurance” and his social security contributions. The Claimant also requested once again for the club to reinstate him.

12. On 15 February 2016, the Respondent replied to the Claimant alleging that the latter had failed to attend trainings since January 2016 and had refused to communicate with the Respondent. On the same date, the Claimant rejected the Respondent’s allegations, reiterating his requests.

13. On 2 March 2016, the Claimant requested the Respondent once again to comply with its contractual obligations.

14. On 11 March 2016, the Respondent reiterated the content of its correspondence dated 15 February 2016.

15. Further correspondence was exchanged between the parties between late March and May 2016, both reiterating their positions.

16. On 9 May 2016, the Claimant terminated the contract in writing as “the club has prohibit me from training” and “the non-payment of my salaries”.

17. On 26 December 2016, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting the following:

- EUR 53,000 as outstanding remuneration corresponding to his salaries for the months of December 2015, January 2016, February 2016, March 2016, April 2016 and nine days of May 2016;

- EUR 5,942.15 as reimbursement of “social security contributions”;

- EUR 4,116.44 as two round-trip tickets Country D – Country B;

- EUR 17,000 as compensation for breach of contract;

- an interest of 5% on the above-mentioned amounts as from 9 May 2016.

18. In his claim, the Claimant explained that after his refusal to renew the contractual relationship in October 2015, the Respondent decided to side-line him and stopped complying with its financial obligations. In particular, the Claimant alleged that the Respondent stopped paying his salaries as of December 2015.

19. Moreover, the Claimant pointed out that he put the Respondent in default on several occasions; however to no avail. As such, the Claimant deemed that he had just cause to terminate the contract. Hence, according to the Claimant, he is entitled to receive compensation for breach of contract from the Respondent.

20. The Claimant equally stressed that the Respondent was responsible for the payment of his “social security contributions” and provided an invoice in a language other than the official languages of FIFA and without providing the relevant translation, only for the amount of EUR 5,942.15 allegedly paid by him to the Authorities of Country D.

21. As to the flight tickets, the Claimant argued that he was entitled to four round-trip tickets per season which the Respondent failed to provide. In this regard, the Claimant presented a print-screen of a pre-booked flight City E-City F for the amount of EUR 2,058.22.

22. In its reply to the claim, the Respondent alleged that both parties complied in full with their respective contractual obligations until January 2016, when the Board of Directors decided to relegate the player to the B team pursuant to art. V.2 of the contract. In this respect, the Respondent presented several bank receipts according to which it can be seen, inter alia, that the Claimant’s salary for December 2015 was paid on 8 February 2016.

23. According to the Respondent, as from that date, the Claimant refused to train and to reply to its communications in violation of art. VI of the contract. Therefore, and considering the several breaches of his contractual obligations, the Respondent considers that it was entitled to retain the Claimant’s salaries.

24. In continuation, the Respondent asserted that the Claimant was personally responsible for the payment of the social security contributions. In support of its assertion, the Respondent outlined that the untranslated invoice submitted by the Claimant is addressed to him and not to the club.

25. In his replica, the Claimant recalled that the Respondent’s first breaches occurred already in October 2015. What is more, the Claimant denied having been absent from trainings and emphasised once again that it was the Respondent which separated him from the team.

26. Furthermore, the Claimant pointed out that the fact that he is personally responsible for the payment of social security contributions does not release the Respondent from its commitment to reimburse him in accordance with the declaration made on 18 June 2012.

27. In view of the above, the Claimant reiterated his requests for relief.

28. In its final comments, the Respondent maintained its previous allegations, stressing that pursuant to Law of Country D, the Claimant is personally liable for the monthly payment of his social security contributions.

29. Having been invited to do so, the Claimant informed FIFA that he did not sign any new employment contract until 30 June 2016.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also 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 26 December 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 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 an Player of Country B and a Club of Country D.

3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 2018), and considering that the Claimant’s claim was lodged on 26 December 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 the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. The Chamber first noted that the parties entered into an employment contract valid as of 18 June 2012 until 30 June 2016, according to which the Claimant was entitled to receive from the Respondent, inter alia, a monthly salary of EUR 10,000 net for the 2015/2016 season.

6. In continuation, the DRC acknowledged that, after a certain exchange of correspondence between the parties, on 9 May 2016, the Claimant terminated the contract alleging just cause. In particular, according to the Claimant, the Respondent prevented him from training with the rest of the team as well as due to the “non-payment of [his] salaries”.

7. Having established the above, the Chamber proceeded to analyse the claim of the Claimant who argues that at the time he terminated the contract, his salaries as of December 2015 were outstanding. What is more, according to the Claimant, the Respondent prevented him from complying with his contractual obligations as he was not allowed to train with the rest of the team.

8. The DRC further noted that, on its part, the Respondent argued that during January 2016 its Board of Directors decided to send the Claimant to the B team pursuant to art. V.2 of the contract upon which the Claimant refused to train. According to the Respondent, the Claimant also stopped answering to its communications thereby violating art. VI of the contract. As such, the DRC noted, the Respondent claimed having been entitled to retain the Claimant’s salaries.

9. In view of the foregoing considerations, the Chamber deemed that the first issue which it needed to address was whether the relevant employment contract had been terminated by the Claimant with just cause and, in the affirmative, which would be the potential consequences of said termination.

10. In so doing, the Chamber first wished to recall the principle enshrined in art. 12 par. 3 of the Procedural Rules, i.e. the principle which dictates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

11. With the aforementioned principle in mind, the Chamber first pointed out that that it remained undisputed that, at least as of January 2016, the Respondent had stopped paying the Claimant’s salaries. In this respect, the Chamber was of the opinion that it was the burden of the Respondent to prove that it indeed had valid reasons not to pay the Claimant’s salaries.

12. In order to determine the above, the Chamber focused its attention on the exchange of correspondence between the parties during the months between October 2015 and April 2016. In this regard, the DRC noted that the parties held completely contradictory positions. On the one hand, the Claimant always alleged that the Respondent was either preventing him from training or sent to train alone and, on the other hand, the Respondent stressed that it was the Claimant who was “not participating on the training process”. In this context, the DRC found quite telling that in his correspondence of 2 May 2016, the Claimant had explicitly requested the Respondent to provide him with a “training schedule”, but that there is no evidence on file that such “schedule” was ever delivered to the Claimant. What is more, the Respondent’s assertion in its different letters that the Claimant was “refusing the communication with our club” clearly does not stand as it is evident from the several exchange of correspondence between the parties that the Claimant had requested to resume training with the rest of the team on several occasions.

13. On account of all the foregoing, the Chamber was far from satisfied that, as alleged by the Respondent, the Claimant was in breach of his contractual obligations since January 2016, thereby granting the Respondent a valid reason not to pay the Claimant’s salaries. Indeed, the DRC determined that the club had failed to provide sufficient evidence which would corroborate, to the DRC’s satisfaction, that the player had stopped performing his obligations as per the contract by not attending the training sessions. In this respect, the DRC highlighted that the notices presented by the Respondent, all being internal documents, are insufficient to demonstrate on and of themselves that the Claimant was indeed in breach of his contractual obligations. What is more, the player explicitly denied this allegation.

14. Therefore, the Chamber reasoned that the Respondent had seriously neglected its contractual obligations towards the Claimant by not remunerating the latter without any valid reason during a period of at least 4 months. What is more, the DRC highlighted that the Claimant had put the Respondent in default on several occasions. As such, the Chamber came to the unanimous conclusion that the Claimant had had just cause to terminate the contractual relationship binding it to the Respondent on 9 May 2016 and that, consequently, the Respondent is to be held liable for said early termination of the contract by the Claimant.

15. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant.

16. 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.

17. Along those lines, the Chamber first referred to the alleged outstanding salary for the month of December 2015. In this respect, the Chamber was of the opinion that the documentary evidence presented by the Respondent shows that the latter actually paid the salary of December 2015 on 8 February 2016. Hence, the Chamber decided that the Respondent has to pay to the Claimant as outstanding remuneration his salaries as of January 2016 until April 2016, i.e. EUR 40,000.

18. 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 9 May 2016, until the date of effective payment, as per the Claimant’s claim.

19. Regarding the claim of the Claimant for reimbursement of “social security contributions”, the Chamber decided to reject such request in view of the fact that the document upon which this request is based is in a language other than the official languages of FIFA and that the Claimant failed to provide the respective translation. Consequently, the DRC could not take into account such documentary evidence (cf. art. 9e) of the Procedural Rules).

20. 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.

21. 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.

22. 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.

23. 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 20,000 corresponding to the months of May and June 2016. The Chamber concluded that this amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

24. 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.

25. In this regard, the Chamber noted that, according to the Claimant, he did not enter into any professional football relationship with a new club during the period comprised between the termination of the contract and its original termination date.

26. Furthermore, as regards the Claimant’s claim pertaining to air tickets, on the basis of the information provided by FIFA Travel and referring to the relevant terms of the employment contract, the Chamber decided that the Respondent must pay to the Claimant the amount of EUR 1,150. In this respect, the DRC pointed out that the print-screen presented by the Claimant does not constitute sufficient proof in order to determine that he had indeed incurred such costs.

27. 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 21,150 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. 26 December 2016, until the date of effective payment, in accordance with the Chamber’s long standing jurisprudence.

28. 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 40,000 plus 5% interest p.a. as of 9 May 2016 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 21,150 plus 5% interest p.a. as of 26 December 2016 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 - www.tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS Directives