F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 11 April 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 11 April 2019,

in the following composition:

Geoff Thompson (England), Chairman

Alexandra Gómez (Uruguay), Member

Stefano Sartori (Italy), Member

Daan de Jong (Netherlands), Member

Muzammil bin Mohamed (Singapore), 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. The Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent) entered into an employment contract valid from 13 January 2017 until 31 May 2019.

2. According to art. 3 of the contract, the Claimant was entitled to receive a lump sum payment of EUR 50,000 on 16 January 2017, and a monthly salary of EUR 25,000 payable on the 30th of each month from February to May 2017.

3. In addition, art. 3 foresees that for the seasons 2017/2018 and 2018/2019, the Claimant would be entitled to receive a monthly remuneration of EUR 20,000 payable on the 30th of each month from August to May (i.e. EUR 200,000 per season), as well as two lump sum payments of EUR 50,000 payable in August and October (i.e. EUR 100,000 per season) and an appearance bonus of EUR 1470 “per match”.

4. Moreover, art. 24 of the contract stipulates, inter alia, that the Respondent shall “provide (…) a 2,500 will be paid rental allowance for the [Claimant] (sic)”.

5. On 2 August 2017, the Claimant was loaned out for the season 2017/2018 to the Club of Country E, Club F. The Claimant and the Respondent signed an “addendum to the contract of employment”, according to which the Claimant and the Respondent agreed to the suspension of the contract for the duration of the loan, from 3 August 2017 until 30 June 2018, and agreed on the payment of a lump sum of EUR 50,000 payable in two equal instalments on 31 August and 31 October 2017.

6. Between 13 September and 1 November 2018, the Claimant apparently sent four correspondences to Club C, by means of which he, inter alia, requested the outstanding payment of the lump sum payment due in August 2018, as well as the monthly salaries and housing allowances that had not been paid to him since August 2018. In addition, the Claimant alleged that the Respondent was “mobbing” him by forcing him to train alone and not giving him access to the same facilities as the rest of the first team. In addition, the Claimant declared that the Respondent de-registered him which meant that he was apparently no longer eligible to play in official matches for the Respondent. As such, the Claimant requested the “mobbing” to end, to be re-integrated with the first team and re-registered “immediately”. In his final correspondence dated 1 November 2018, the Claimant also gave the Respondent a 30 November 2018 deadline to comply with his above injunctions.

7. On 20 September and 4 October 2018, the Respondent sent two letters to the Claimant by means of which it, inter alia, denied the allegations of “mobbing”, stated that the Claimant was given access to the first team facilities, and declared that the payments of outstanding remunerations would be processed.

8. On 3 December 2018, the Claimant sent to the Respondent a correspondence by means of which he informed the latter of the unilateral termination of the contract with immediate effect and declared that he would lodge a claim in front of the FIFA Dispute Resolution Chamber “based on the fact that the [Respondent] failed to comply with its contractual obligations towards the player”.

9. On 18 December 2018, the Claimant lodged a claim against the Respondent in front of FIFA, arguing that since July 2018 the Respondent had repeatedly breached the contract it signed with him on 13 January 2017, and requested the following to be awarded:

a) The payment of EUR 160,000 and 7,500 of overdue payables, amounting to:

i. EUR 100,000 representing the 2 lump sum payments of EUR 50,000 due in August 2018 and October 2018;

ii. The salaries for August, September and October 2018, i.e. EUR 20,000 x 3 = EUR 60,000;

iii. The rental allowance for August, September and October 2018, i.e. 2,500 x 3 = 7,500;

b) The payment of EUR 140,000 corresponding to the residual value of the contract that was unilaterally terminated by the Claimant, that is to say salaries from November 2018 until May 2019, i.e. EUR 20,000 x 7 = EUR 140,000;

c) The payment of EUR 120,000 as “compensation because of the unjust contract’s termination by the [Respondent]”; and

d) The payment of 5% interest from “each relevant due date until the date of effective receipt by the [Claimant] of the amount eventually determined by the Tribunal (DRC)”.

10. The Claimant also provided video clips evidencing that he and another player had apparently been training on an auxiliary pitch, separate from the rest of the first team, and that he had been using a separate dressing room.

11. In its reply to the claim, the Respondent stated that the Claimant had never been ostracised from its facilities and first team, and that he had been following a specific training programme following the treatment of an apparent long-term injury. In this regard, the Respondent explained that the Claimant had been given “private/extra programmes sometimes, in order to catch the level of the first team”, and vehemently denied any “allegation of mobbing”.

12. In addition, the Respondent attached untranslated “payments documents”, apparently indicating that some payments were made to the Claimant between January 2017 and September 2018.

13. Finally, the Respondent rejected the Claimant’s EUR 120,000 claim as “compensation” for breach of contract, insisting that it does not see any “legal ground” upon which such compensation could be awarded.

14. On 27 March 2019, the Claimant confirmed that he has remained unemployed since he unilaterally terminated his contract with the Respondent.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 18 December 2018. Consequently, the 2018 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 2018 edition 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 DRC 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 June 2018), and considering that the present claim was lodged on 18 December 2018, the June 2018 edition of said 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, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging 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 the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber first acknowledged that the Claimant and the Respondent signed an employment contract valid as from 13 January 2017 until 31 May 2019. In this respect, the Chamber observed that according to art. 3 of the contract, the Claimant was entitled to receive (1) a lump sum payment of EUR 50,000 on 16 January 2017, and a monthly salary of EUR 25,000 payable on the 30th of each month from February to May 2017 and (2) for the seasons 2017/2018 and 2018/2019, a monthly remuneration of EUR 20,000 payable on the 30th of each month from August to May (i.e. EUR 200,000 per season), as well as two lump sum payments of EUR 50,000 payable in August and October of each relevant season (i.e. EUR 100,000 per season). In addition, the DRC noted that art. 24 of the contract stipulates, inter alia, that the Respondent shall “provide (…) a 2,500 will be paid rental allowance for the [Claimant] (sic)”.

6. In continuation, the DRC noted that the Claimant lodged a claim against the Respondent arguing that he had terminated the employment contract with just cause on 14 December 2018 based on the fact that the Respondent had not complied with its financial obligations, namely the payment of two lump-sum fees as well as three monthly salaries, and this despite having been put in default on several occasions prior to the termination. The Chamber also noted that the Claimant had requested to be re-registered with the Respondent and re-integrated to its first team on several occasions. Furthermore, the DRC took note that the Claimant made various complaints to the Respondent which he accused of mobbing. The Chamber additionally acknowledged the Claimant’s video clips provided with his claim.

7. The DRC observed that as a consequence the Claimant asked to be awarded the aforementioned outstanding dues along with the payment of compensation for breach of the employment contract.

8. In this respect, the Claimant requested to be awarded EUR 160,000 and 7,500 as outstanding remuneration plus interest, corresponding to EUR 100,000 as the two lump-sum fees of EUR 50,000 payable in August 2018 and October 2018, EUR 60,000 and 7,500 representing the salaries and rental allowances of August, September and October 2018.

9. The Claimant further requested the amount of EUR 140,000 plus interest, as compensation for breach of contract, corresponding, according to the Claimant, to the residual value of the contract as from the termination until 31 May 2019.

10. What is more, the Claimant requested the award of EUR 120,000 as additional compensation for breach of contract.

11. The Chamber took note of the argumentation of the Respondent which held that the Claimant was not being cast away from its first team but rather that he was following a specific training regimen that comprised additional and individual training sessions. As to the mobbing allegations, the DRC observed that these were denied by the Respondent. In addition, the Chamber took into consideration the untranslated documents which indicated that payments had apparently been made to the Claimant between January 2017 and September 2018.

12. Having paid particular attention to the arguments of the parties, the DRC first paid attention to the fact that the Claimant had claimed that the Respondent had mobbed him by, inter alia, forcing him to train alone. Based on the evidence at its disposal in that regard, the Chamber declared that it was not in a position to objectively determine whether the Claimant was effectively training alone, and whether such circumstance was due to medical reasons, as sustained by the Respondent, or else. In other words, the DRC was of the opinion that the Claimant had not provided conclusive evidence in support of this particular allegation.

13. However, the DRC highlighted that the Respondent did not contest that it had de-registered the Claimant, and did not provide evidence that it had registered the Claimant again following his several injunctions to do so. As such, the DRC was of the opinion that such situation might have led the Claimant to legitimately believe that the Respondent was no longer interested in his services.

14. In view of the above, the members of the DRC considered important to point out, as has been previously sustained by the DRC, 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. In this context, the DRC emphasized that in principle, by refusing to register a player, a club is effectively barring, in an absolute manner, the potential access of a player to competition and, as such, violating one of his fundamental rights as a football player.

15. Then, the DRC took into account that at no point during the proceedings the Respondent denied that the remunerations referred to by the Claimant in his default notices and his claim had remained outstanding.

16. In this respect, the DRC noted that the Respondent merely submitted untranslated “payments documents”. The Chamber first recalled that, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be presented in the original version and, if applicable, translated into one of the official FIFA languages (English, French, Spanish and German). Bearing in mind the wording of the aforementioned provision, the Chamber concluded that said documents provided by the Respondent without a translation in one of the official FIFA languages could not be taken into account.

17. In view of the foregoing, the Chamber concluded that the Respondent did not put forward any reason to justify the outstanding payments nor provided any substantial proof that any of the alleged outstanding payments were made to the Claimant.

18. Then, the DRC vigorously highlighted that the Respondent had not remedied the default in payments in spite of having been given the opportunity by the Claimant to do so in at least four occasions. Furthermore, the Chamber duly noted that on the date of the termination of the contract, i.e. 14 December 2018, four monthly salaries and three rental allowances as well as two lump-sum fees remained outstanding, for a total amount of EUR 180,000 and 7,500. What is more, the Chamber underlined that the Claimant had, in his last default notice dated 1 November 2018, given a 30-days deadline to the Respondent.

19. Recalling the provisions set out in art. 14bis par. 1 according to which in the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s), the Chamber concluded that the Claimant had just cause to unilaterally terminate the contract and that, as a result, the Respondent is to be held liable for the early termination of the employment contract.

20. Bearing in mind the previous considerations, the Chamber turned its attention to the consequences of the early termination of the contract with just cause by the Claimant.

21. First of all, the DRC concurred that the Respondent must fulfil its obligations as per the employment contract up and until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC decided that the Respondent is liable to pay to the Claimant outstanding remuneration in the amount of EUR 180,000 and 7,500, consisting of four monthly salaries of EUR 20,000 each as from August until and including November 2018, two lump sum payments of EUR 50,000 payable in August and October 2018 and three rental allowances of 2,500 for the months of August, September and October 2018.

22. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. as of the respective due dates of the aforementioned sums until the date of effective payment.

23. Furthermore, 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 the aforementioned outstanding remuneration.

24. In this context, the Chamber outlined that, in accordance with the 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.

25. In application of the relevant provision, the DRC 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 an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

26. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its early termination until its regular date of expiry. In this respect, the DRC concluded that the remaining value of the contract as from its early termination until the regular expiry of the contract amounts to EUR 120,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract

27. 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 able to reduce his loss of income.

28. In this respect, the Chamber noted that the Claimant indicated that he had remained unemployed since unilaterally terminating his contract with the Claimant.

29. In line with the provisions set out in art. 17 par. 1 lit. i, the DRC determined that in the present case, the compensation awarded to the Claimant shall be equal to the residual value of the contract that was prematurely terminated. As such, the Chamber concluded that the Respondent is liable to pay to the Claimant the amount of EUR 120,000 as compensation for breach of contract.

30. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 18 December 2018, until the date of effective payment.

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

32. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

33. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

34. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

35. Finally, the Chamber recalled that the above-mentioned sanction will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

*****

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent, Club C, has to pay to the Claimant the amounts of

EUR 180,000 and 7,500 plus 5% interest p.a. as follows:

a. on the amounts of EUR 20,000 and 2,500 as of 31 August 2018 until the date of effective payment;

b. on the amount of EUR 50,000 as of 1 September 2018 until the date of effective payment;

c. on the amounts of EUR 20,000 and 2,500 as of 1 October 2018 until the date of effective payment;

d. on the amounts of EUR 20,000 and 2,500 as of 31 October 2018 until the date of effective payment;

e. on the amount of EUR 50,000 as of 1 November 2018 until the date of effective payment;

f. on the amount of EUR 20,000 as of 1 December 2018 until the date of effective payment.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 120,000, plus 5% interest p.a. on said amount as from 18 December 2018 until the date of effective payment.

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

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under point 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due in accordance with points 2. and 3. above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sums are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision

*****

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:

Emilio García Silvero

Chief Legal Officer

Encl.: CAS directives