DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 24 agosto 2018 • Stagione sportiva: 2018/2019

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 24 August 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 24 August 2018,

in the following composition:

Geoff Thompson (England), Chairman

Joaquim Evangelista (Portugal), member

Todd Durbin (USA), 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 July 2016, the player of Country B, Player A (hereinafter: the player or Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent) signed an employment contract (hereinafter: the contract) and a schedule to it, both valid as from 1 July 2016 until 30 June 2019.

2. According to the schedule to the contract, the player was entitled, inter alia, to the following remuneration:

“(c) Basic Salary.

31 000 in the currency of Country D per month from 31 July 2016 to 30 June 2017

31 000 in the currency of Country D per month from 31 July 2017 to 30 June 2018

31 000 in the currency of Country D per month from 31 July 2018 to 30 June 2019

(d) Any other provisions:

- Signing on fee of 200.000 in the currency of Country D paid in three instalments

1st year –70.000 in the currency of Country D

2nd year –70.000 in the currency of Country D

3rd year –60.000 in the currency of Country D

- For accommodation we give 1000 in the currency of Country D.

[…]

Club C will pay full salary as soon as the player gets his working visa.”

3. In addition, article 8.1 of the contract stipulates the following:

“The footballer shall be paid a monthly salary as recorded on the schedule to this contract by no later than the last business day of each month.”

4. On 29 September 2017, the player put the club in default of the payment of the total amount of 219,000 in the currency of Country D (approx. EUR 13,715 on 29 September 2017), corresponding to the monthly salaries of July and August 2016 and June, July and August 2017 in the amount of 31,000 in the currency of Country D each, a part of the first instalment of the signing on fee in the amount of 45,000 in the currency of Country D and accommodation from July 2016 until August 2017 in the total amount of 19,000 in the currency of Country D. In the same letter, the player also highlighted that “the validity of a contract cannot be made subject to the grant of a work permit” and pointed out that the club allegedly “indicated to the player that [it does] not want him anymore and that he needs to write his resignation letter in order for the club to provide him with his clearance”, which he refused to do. The player further points out that the club’s “conduct is of great prejudice and that the player is unable to pay for his accommodation, for food and for doctor and medication in respect of his injury sustained during a match played for the club”. Finally, the player warned the club that, in case he would not receive any indication as to where and when he should report for training and his outstanding remuneration until 10 October 2017, he would terminate his contract with the club and refer the matter to FIFA.

5. On 13 October 2017, having received no reply from the club, the player terminated the employment contract with the club with effect as from 11 October 2017 and requested to be paid the amount of 261,000 in the currency of Country D, consisting of 219,000 in the currency of Country D previously claimed (cf. point I.4 above) plus 31,000 in the currency of Country D as the salary for September 2017, 10,000 in the currency of Country D as the pro rata salary for October 2017 and 1,000 in the currency of Country D as accommodation for September 2017.

6. On 12 January 2018, the player lodged a claim against the club in front of FIFA maintaining that he had just cause to terminate the contract and requesting to be awarded the total amount of 1,053,000 in the currency of Country D (approx. EUR 70,600 on 12 January 2018), consisting of:

“1 Outstanding moneys –264,419.38 in the currency of Country D

1.1 Salary for July 2016 –31,000.00 in the currency of Country D;

1.2 Salary for August 2016 –31,000.00 in the currency of Country D;

1.3 Salary for June 2017 –31,000.00 in the currency of Country D;

1.4 Salary for July 2017 –31,000.00 in the currency of Country D;

1.5 Salary for August 2017 –31,000.00 in the currency of Country D;

1.6 Salary for September 2017 –31,000.00 in the currency of Country D;

1.7 Salary for 1-13 October 2017 –13,000.00 in the currency of Country D;

1.8 The signing on fee for the first year in the amount of currency of Country D 45,000.00 in the currency of Country D (70,000.00 – 25,000.00);

1.9 Accommodation since July 2016 till 13 October 2017 –20,419.38 in the currency of Country D ((20 x 1,000.00) + 1,000.00 in the currency of Country D/31 * 13 days)).

[…]

2. Compensation –788,580.62 in the currency of Country D:

Salary:

2.1 14 October 2017 – 31 October 2017: 18,000.00

2.2 1 November 2017 – 30 June 2018: 248,000.00

2.3 1 July 2018 – 30 June 2019: 372,000.00

[…]

Signing on fee:

2.4 Payment for signing on fee for the second year: 70,000.00 in the currency of Country D.

2.5 Payment for signing on fee for the third year: 60,000.00 in the currency of Country D.

[…]

Accommodation Allowance:

2.6 14 October 2017 – 31 October 2017: 580.62 in the currency of Country D

2.7 1 November 2017 – 30 June 2018: 8,000.00 in the currency of Country D

2.8 1 July 2018 – 30 June 2019: 12,000.00 in the currency of Country D”

The player further claimed the imposition of a fine on the club as per art. 12bis par. 4 lit. c) of the FIFA Regulations or appropriate sanctions as per the aforementioned Regulations, as well as “interest on all moneys from date when it were due till date of payment”.

7. In his claim, the player argued that the club did not register him “with the league for the 2017/2018 season”, and even though the player requested clarification on this from the club in his correspondence dated 29 September 2017 (cf. point I.4 above), the club failed to answer.

8. According to the player, the club informed him in a meeting in August 2017, “that the Club does not want him anymore and that he needs to write his resignation letter in order for the Club to provide him with his clearance. Mr. E informed the Player that if he does not write his resignation letter, the Club will call the Police in order to deport him back to his country.” The player added that “despite the fact that the Club informed him that the Club does not want him anymore, the Player continued to train at the club and rendered his services, when possible.”

9. The player claims that as a result of the “outstanding amounts of money equivalent to 8 months’ salaries”, the fact that “the club never registered the player with the league for the 2017/218 season” and that “during August 2017 the club informed the player that it has no longer any interest in the service of the player”, he had a just cause to terminate the contract with the club on 13 October 2017.

10. In its reply, the club argued that it paid all salaries to the player, except for May, June and July 2017, as the player “was not available for June and July 2017”. Furthermore, the club claimed that the player got injured at the end of the 2016/2017 season and after the summer break, the player failed to report back for pre-season training on 7 July 2017, returning to work only on the second week of August.

11. According to the club, “later that week” the player did not feel well and was sent home by the coach. The club added that “he later came back end of August 2017 and requested to terminate his contract if he was paid his outstanding 3 month’s salary, the club agreed and drafted his termination with this condition that he must be paid outstanding salaries. He was supposed to come back and sign the next day he never came.”

12. Subsequently, the club feels that “Club C never did anything wrong or chase the footballer away. He still have our work visa on his passport. The footballer is still contracted with the club. He went missing after requesting termination.”

13. Finally, after having been requested to do so, the player informed FIFA that he remained unemployed since the termination of the contract.

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 12 January 2018. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; 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 (January 2018 edition) 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. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 20 August 2018 by means of which the parties were informed of the composition of the Chamber, the Member F and the Member G refrained from participating in the deliberations in the case at hand, due to the fact that the Member F has the same nationality as the Respondent and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the Member G refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations.

4. 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 (January 2018 and June 2018 editions), and considering that the present claim was lodged on 12 January 2018, the January 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

5. 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.

6. In this respect, the Chamber acknowledged that the parties had signed an employment contract, valid as from 1 July 2016 until 30 June 2019, on the basis of which the player was entitled to receive a monthly salary of 31,000 in the currency of Country D and a signing on fee in the amount of 200,000 in the currency of Country D, to be paid in three instalments, as well as 1,000 in the currency of Country D for accommodation.

7. The members of the Chamber then reviewed the claim of the player, who maintains that he had a just cause to terminate the contract on 13 October 2017, as the club failed to pay him 6 monthly salaries, i.e. July and August 2016 and June, July, August and September 2017, a part of the signing on fee and the accommodation from July 2016 until the date of termination. Consequently, the Claimant asked to be awarded, inter alia, the payment of his outstanding remuneration, including monthly salaries, accommodation fees and part of his signing on fee, as well as compensation for breach of contract. The Chamber also took note of the Claimant’s allegation, that the Respondent did not register the player for the 2017/2018 season, explicitly informed the player that it was no longer interested in his services and asked him to sign a resignation letter.

8. The Chamber then turned its attention to the arguments of the Respondent and acknowledged that the latter argued to have paid all salaries due to the player except for May (not claimed), June and July 2017, due to the fact that he was allegedly absent in June and July 2017. The Chamber also took note of the Respondent’s allegations, that the Claimant failed to report back for pre-season training on 7 July 2017, returning to work only on the second week of August 2017.

9. On account of the above, the Chamber highlighted that the underlying issue in this dispute was to determine as to whether the contract had been unilaterally terminated with or without just cause by the Claimant on 13 October 2017, with effect as from 11 October 2017. The Chamber also underlined that, subsequently, if it were found that the contract was terminated with just cause, it would be necessary to determine the consequences thereof.

10. Bearing in mind the arguments put forth by the Claimant and the Respondent, as well as the contents of the employment contract, the Chamber acknowledged that it remained undisputed by the Respondent that it did not pay the salary of the Claimant for the months of May (not claimed), June and July 2017. The Chamber further acknowledged that the Respondent argued that the reason why it did not pay the above-mentioned salaries, was because the player was absent in June and July 2017. However, the Chamber was eager to emphasise that the Respondent itself stated in its reply, that the players were allowed to go on a break after the end of the season in May and only had to return on 7 July 2017. Furthermore, the Chamber noted that no substantial evidence of the player’s alleged absence during the entire month of July 2017 was provided by the Respondent.

11. Subsequently, 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 on the basis of an alleged fact shall carry the respective burden of proof.

12. In view of the above, the Chamber observed that the Respondent did not submit sufficient evidence – to the Chamber’s satisfaction – which could prove the alleged unauthorized absence of the Claimant. In addition, the Chamber noted that the Respondent also could not prove that it had paid the salaries of the Claimant for July and August 2016 and for August and September 2017, the outstanding part of his signing on fee or the accommodation fees for the period from July 2016 to September 2017. Moreover, the DRC recalled that the club only submitted screenshots from an alleged whatsapp conversation between the Claimant and his team mate in a non-official FIFA language, without any translation.

13. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber established that on 11 October 2017, date on which the termination by the player was meant to become effective, the player’s salaries for July and August 2016, and for June to September 2017, as well as part of his signing on fee in the amount of 45,000 in the currency of Country D in the , and the accommodation fees for the whole period of July 2016 to September 2017 had remained outstanding. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the contract on 13 October 2017 and that the Respondent is to be held liable for the early termination of the contract with just cause by the player.

14. In continuation, having established that the club is to be held liable for the early termination of the employment contract with just cause by the player with effect as from 11 October 2017, the Chamber focused its attention on the consequences of such termination.

15. First of all, the members of the Chamber concurred that the club must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the club is liable to pay to the player the remuneration that was outstanding at the time of the termination in the total amount of 246,000 in the currency of Country D, consisting of the salaries for the months of July and August 2016 and June until September 2017, à 31,000 in the currency of Country D each, the unpaid part of the first instalment of the signing on fee in the amount of 45,000 in the currency of Country D and the agreed amount for accommodation due from July 2016 until September 2017 in the total amount of 15,000 in the currency of Country D.

16. Furthermore, considering the player’s claim for interest and also taking into account the Chamber’s longstanding jurisprudence, the Chamber ruled that the club must pay 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as from 2 July 2016 on the amount of 45,000 in the currency of Country D;

b. 5% p.a. as from 1 August 2016 on the amount of 31,000 in the currency of Country D;

c. 5% p.a. as from 1 September 2016 on the amount of 31,000 in the currency of Country D;

d. 5% p.a. as from 1 July 2017 on the amount of 31,000 in the currency of Country D;

e. 5% p.a. as from 1 August 2017 on the amount of 31,000 in the currency of Country D;

f. 5% p.a. as from 1 September 2017 on the amount of 31,000 in the currency of Country D;

g. 5% p.a. as from 1 October 2017 on the amount of 31,000 in the currency of Country D;

h. 5% p.a. as from 2 July 2016 on the amount of 1,000 in the currency of Country D;

a. 5% p.a. as from 2 August 2016 on the amount of 1,000 in the currency of Country D;

i. 5% p.a. as from 2 September 2016 on the amount of 1,000 in the currency of Country D;

j. 5% p.a. as from 2 October 2016 on the amount of 1,000 in the currency of Country D;

k. 5% p.a. as from 2 November 2016 on the amount of 1,000 in the currency of Country D;

l. 5% p.a. as from 2 December 2016 on the amount of 1,000 in the currency of Country D;

m. 5% p.a. as from 2 January 2017 on the amount of 1,000 in the currency of Country D;

n. 5% p.a. as from 2 February 2017 on the amount of 1,000 in the currency of Country D;

o. 5% p.a. as from 2 March 2017 on the amount of 1,000 in the currency of Country D;

p. 5% p.a. as from 2 April 2017 on the amount of 1,000 in the currency of Country D;

q. 5% p.a. as from 2 May 2017 on the amount of 1,000 in the currency of Country D;

r. 5% p.a. as from 2 June 2017 on the amount of 1,000 in the currency of Country D;

s. 5% p.a. as from 2 July 2017 on the amount of 1,000 in the currency of Country D;

t. 5% p.a. as from 2 August 2017 on the amount of 1,000 in the currency of Country D;

u. 5% p.a. as from 2 September 2017 on the amount of 1,000 in the currency of Country D.

17. 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.

18. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, 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.

19. In application of the relevant provision, the Chamber held that first of all, it had to clarify as to whether the pertinent employment contract contained a provision 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 Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

20. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

21. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 11 October 2017, until 30 June 2019, and concluded that the Claimant would have received in total 802,000 in the currency of Country D as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of 802,000 in the currency of Country D serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand, consisting of 21 monthly salaries à 31,000 in the currency of Country D each, 21 months of accommodation fees à EUR 1,000 each and the second and third instalments of the signing on fee, amounting to 70,000 in the currency of Country D and 60,000 in the currency of Country D respectively.

22. 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.

23. The Chamber noted that the Claimant had been unemployed since the termination of the contract with the Respondent and therefore no further deductions should be made to the amount of 802,000 in the currency of Country D.

24. In addition, taking into account the Claimant’s request and the DRC’s well-established jurisprudence, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of 802,000 in the currency of Country D as of the date on which the claim was lodged, i.e. 12 January 2018, until the date of effective payment.

25. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to the imposition of a fine on the Respondent as per art. 12bis par. 4 lit. c) of the Regulations, as the present dispute does not meet the formal pre-requisites of the application of art. 12bis of the Regulations.

26. Finally, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

*****

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, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of 246,000 in the currency of Country D plus 5% interest p.a. until the date of effective payment as follows: