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

• Data decisione: 14 settembre 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 14 September 2018

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 14 September 2018,

in the following composition:

Geoff Thompson (England), Chairman Jérôme Perlemuter (France), member Elvis Chetty (Seychelles), member Stefano Sartori (Italy) member Takuya Yamazaki (Japan), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 20 June 2017, the player of Country B, Player A (hereinafter: the Claimant) and the club of Country D, Club C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid as from 1 July 2017 until 30 June 2020.

2. According to art. XII of the contract, the Claimant was entitled to a monthly salary in the amount of 1,006,102 in the currency of Country D, payable on the 15th day of the following month.

3. Moreover, art. 20 of the contract was drafted as follows:

“20. The Employer declares that if the Employee suffers accident (workplace accident) in the course of his sports activities performed in the framework of employment contract he shall pay the full wage to the Employee according to the contract in line with the provisions of the Labour Code, with the deduction of the social security amount paid by the employee.”

4. In addition, arts. 49 and 50 of the contract stipulated the following:

“49. The Parties agree that they shall make efforts to settle their possible dispute in an amicable way by negotiations. If these efforts fail – in cases determined by the rules of Football Federation of Country D and FIFA – the Parties may turn to the organizational units with Football Federation of Country D or FIFA scope of authority; in case of labour dispute to the Administrative and Labour Court having competence and scope of authority, and in all other disputes arising out of their legal relationship the Parties stipulate the exclusive jurisdiction of the Sports Standing Arbitration Court based on the Article 47 of the Sports Law. The number of arbitrators is three: the procedure is determined by the Procedural Rules of the Arbitration Court.”

“50. The Parties apply the rules of the law of Country D to their legal relationship. Matters not regulated by this employment contract shall be governed by the Labour Code, the Sports Law and other relevant legislative rules, as well as by the rules of the Employer, Football Federation of Country D, Continental Confederation and FIFA.”

5. On 9 April 2018, the Claimant lodged a claim against the Respondent for breach of contract without just cause and requested the payment of the following amounts:

- 2,263,200 in the currency of Country D as outstanding salaries for the months of November 2017 and December 2017, plus 5% interest “as of the date of effective payment”. In this respect, the Claimant considered that his monthly “brutto” salary was in the amount of “1,006,102 in the currency of Country D”, while his monthly “netto” salary was in the amount of “1,131,600 in the currency of Country D”;

- 30,183,060 in the currency of Country D, as compensation for breach of the contract and corresponding to the residual value of the contract as from its termination until 30 June 2020 (i.e. 30 instalments).

6. According to the Claimant, the Respondent only paid part of his salary of August 2017, for the amount of 470,000 in the currency of Country D, and he did not receive his remuneration for September 2017, October 2017 and November 2017, for a total amount of 4,056,400 in the currency of Country D.

7. In this respect, the Claimant explained that he sent a default notice to the Respondent on 18 December 2017 and 15 January 2018, by means of which he requested the payment of overdue payables for August 2017, September 2017, October 2017 and November 2017.

8. Within this context, the Claimant explained that the Respondent failed to reply to the default notices and, as a result, he sent a termination letter to the Respondent on 23 January 2018, on the basis of a total outstanding amount of 5,188,000 in the currency of Country D (incl. the salary of December 2017).

9. Notwithstanding the above, the Claimant acknowledged that the Respondent paid him at a later stage his salaries for August 2017, September 2017 and October 2017.

10. In its reply, the Respondent contested the jurisdiction of FIFA and considered that, based on clause 49 of the contract, the matter “shall be given to the Labor and Administrative Court of Country D.”

11. As to the facts, the Respondent denied the facts as described by the Claimant. In particular, the Respondent stated that, on 15 July 2017, the Claimant suffered a major injury while playing a match and, as a result, he could not play and did not take part in the team’s matches.

12. In this regard, the Respondent explained that, in accordance with law of Country D, an employee having suffered an accident at work must hand in his social security card in order to receive his unemployment benefits. However, and according to the Respondent, the Claimant failed to meet his obligations in relation to the required procedure to obtain his unemployment benefit.

13. Ultimately, the Respondent acknowledged that the Claimant received his unemployment benefit on 8 November 2017, i.e. more than 4 months after his injury. Within this context, the Respondent stated that it paid the Claimant’s salary until said date.

14. Furthermore, the Respondent stated that, on 23 March 2018, it concluded a mutual termination agreement with the Claimant, which allegedly stipulated the following:

“4/ The parties declare that they have settled accounts with each other in connection with the Employment Contract referred to in Clause 1 up to and including the 23rd day of March 2018. The Employer shall pay the [Claimant]’s wages as follows:

- The [Respondent] shall pay the sum of 3,800,000.00 in the currency of Country D to the Employee by bank transfer until 26th April 2018 at the latest.

5/ The parties declare that they have no further financial claims against each other, and that the parties have no further claims against each other on any legal grounds whatsoever.”

15. In addition, the Respondent requested to “oblige the [Claimant] to pay the costs of the proceeding.”

16. In his replica, the Claimant insisted in the competence of FIFA as he considered that the Administrative and Labour Court is not “an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement as it is mentioned in the FIFA Regulations.”

17. In addition, the Claimant denied having signed the mutual termination agreement, and considered that the document provided by the Respondent is forged. In this regard, the Claimant requested the FIFA administration to request from the Respondent an original copy of the aforementioned document.

18. In relation to his injury, the Claimant stated that, in accordance with art. IV par. 20 of the contract, the Respondent should have continued to pay his salary during the relevant period.

19. As final comments, the Respondent insisted in the competence of the “Administrative and Labour Court of Country D”.

20. Moreover, the Respondent also insisted that the Claimant signed the mutual termination agreement, and attached several statements from three alleged witnesses in support of its allegation.

21. In relation to the Claimant’s request to be provided with an original copy of the mutual termination agreement, the Respondent explained that “an original copy of the signed document is not at the disposal of the [Respondent], regrettably, because the [Claimant] took them arbitrarily.” In support of its allegation, the Respondent attached a copy of a conversation allegedly held on “Whatsapp Messenger” between the Claimant and a Respondent’s representative.

22. Finally, and after being invited to do so, the Claimant informed FIFA that he remained unemployed until 30 June 2018, when he concluded an employment contract with the club of Country B, Club E, valid as from 1 July 2018 until 31 December 2018.

23. Following art. IV of the aforementioned contract, the Claimant was entitled to a monthly remuneration in the amount of EUR 400.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 9 April 2018. Consequently, the 2018 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 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 Dispute Resolution Chamber shall adjudicate on employment-related disputes between a player and a club that have an international dimension.

3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation which involves a player of Country B and a club of Country D regarding an employment-related dispute.

4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 49 of the contract (cf. point I. 4 above) alleging that the matter “shall be given to the Labor and Administrative Court of Country D.”

5. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent, as he considered that the Administrative and Labour Court is not “an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement as it is mentioned in the FIFA Regulations.”

6. Taking into account all the above, the Chamber emphasized that in accordance with art. 22 of the Regulations on the Status and Transfer of Players (edition 2018), FIFA is competent “without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes”.

7. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national court derives from a clear reference in the employment contract.

8. Therefore, 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 present dispute contained a clear jurisdiction clause.

9. In this respect, the Chamber recalled that clauses 49 and 50 of the contract stipulated the following:

10. Having examined the relevant provisions, the Chamber came to the unanimous conclusion that clauses 49 and 50 of the contract do not constitute a clear jurisdiction clause in favour of one specific court or arbitration tribunal in Country D, since they only formulate a generic reference “to the Administrative and Labour Court”, without providing any further details.

11. In addition, the Chamber highlighted that the aforementioned clause further stipulates that “the Parties may turn to the organizational units with Football Federation of Country D or FIFA scope of authority”. In other words, the Chamber understood that the parties agreed that FIFA may be competent in the matter at stake.

12. On account of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

13. The competence of the Chamber having been established, 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, it 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 present matter was submitted to FIFA on 9 April 2018, the 2018 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

14. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. 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.

15. In this respect, the Chamber acknowledged that the parties to the dispute had signed an employment contract valid as from 1 July 2017 until 30 June 2020 and that the Claimant lodged a claim against the Respondent, maintaining that, after having put the Respondent in default, he had terminated the employment contract with just cause on 23 January 2018 by means of a termination letter.

16. In this respect, and before entering into the analysis of the circumstances leading to the early termination of the contract, the Chamber first turned its attention to the Respondent’s allegation, according to which, on 23 March 2018, it concluded a mutual termination agreement with the Claimant, which allegedly stipulated the following:

- The [club] shall pay the sum of 3,800,000.00 in the currency of Country D to the Employee by bank transfer until 26th April 2018 at the latest.

5/ The parties declare that they have no further financial claims against each other, and that the parties have no further claims against each other on any legal grounds whatsoever.”

17. Conversely, the Chamber noted that the Claimant denied ever having signed the aforementioned mutual termination agreement, and that he considered that the document provided by the Respondent in this regard is forged.

18. In view of the dissent between the parties, the Chamber recalled the basic principle of burden of proof, as established 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.

19. Concerning said principle, the Chamber took note that the Respondent was invited during the proceedings by the FIFA Administration to provide an original copy of the alleged mutual termination agreement, and that, in reply to said request, the Respondent explained that “an original copy of the signed document is not at the disposal of the [Respondent], regrettably, because the [Claimant] took them arbitrarily.”

20. In relation to the Respondent’s justification for not providing an original copy of the allegedly signed mutual termination agreement, the Chamber understood that the scope of this allegation was insufficient and that, in any case, it would have been expected from a professional football club to have a reliable system to keep and organize all its legal documents and archives.

21. As a result, the Chamber concluded that the Respondent failed to meet its burden of proof in the sense of art. 12 par. 3 of the Procedural Rules and was therefore unable to prove beyond any reasonable doubt that the mutual termination agreement was effectively concluded between the parties. Therefore, the Chamber agreed that it could not take into account the alleged mutual termination agreement.

22. Subsequently, the members of the Chamber proceeded to examine the position of the parties as to the development of the contractual relationship and subsequent dispute occurred between the parties.

23. In particular, the Chamber noted that the Claimant lodged a claim against the Respondent, maintaining that, after having put the Respondent in default, he had terminated the employment contract on 23 January 2018 with just cause by means of a termination letter. In particular, the Chamber noted that, according to the Claimant, the Respondent had a total debt towards him in the amount of 5,188,000 in the currency of Country D. Consequently, the Claimant asks to be awarded outstanding dues as well as the payment of compensation for breach of the employment contract.

24. As a result, the Chamber understood that the main legal issue at stake is to determine whether the contract had been terminated by the Claimant with or without just cause.

25. In this respect, the members of the Chamber took note of the Respondent’s position, according to which, on 15 July 2017, the Claimant suffered a major injury while playing a match and that, as a result, he could not play and did not take part in team’s matches. Within this context, Chamber noted that, following the Respondent, in accordance with law of Country D, an employee having suffered an accident at work must hand in his social security card in order to receive his unemployment benefits.

26. Within the aforementioned context, the Chamber noted that, according to the Respondent, the Claimant failed to meet his obligations in relation to the required procedure to obtain his unemployment benefit.

27. In relation to said argument, the Chamber recalled the contents of the contract in relation to injuries. In particular, the Chamber observed that clause 20 of the contract was drafted as follows:

28. After duly assessing the contents of the aforementioned clause, the Chamber understood that the parties simply agreed that, in case of injury, the Respondent should still pay the Claimant’s salary, without requiring him to perform any specific administrative procedure in order “to receive his unemployment benefits”.

29. As a result, the Chamber decided to dismiss the Respondent’s argument in this regard, and determined that, on the basis of clause 20 of the contract, it had no valid reason to withhold or delay the payment of the Claimant’s remuneration, regardless of any other administrative procedure.

30. As a result, and in strict application of the fundamental principle of pacta sunt servanda, the members of the Chamber recalled that, under any circumstance, the Claimant was contractually entitled to receive his remuneration in a timely manner and as agreed between the parties. Hence, the Chamber considered that the Respondent was not entitled to delay or withhold the Claimant’s remuneration on the basis of the aforementioned administrative procedure.

31. All in all, the Chamber concluded that, as of 23 January 2018, the Respondent failed to pay without any valid justification the Claimant’s salaries of part of August 2017, September 2017, October 2017, November 2017 and December 2017, with an alleged debt at that moment in the amount of 5,188,000 in the currency of Country D.

32. In this respect, the Chamber noted that the Respondent did not deny that, at the date of termination of the contract, it owed to the Claimant his salaries since August 2017. As a result, considering that the Respondent had repeatedly and for a significant period of time been in breach of its (financial) obligations towards the Claimant and in accordance with its longstanding jurisprudence, the Chamber unanimously established that the Respondent had a just cause to terminate the contract on 23 January 2018.

33. Notwithstanding the above, the DRC noted that the Claimant acknowledged that the Respondent paid him at a later stage his salaries for August 2017, September 2017 and October 2017. However, the DRC noted that the Claimant maintained that, at the date of the claim, the amount of 2,263,200 in the currency of Country D, correspondent for the months of November 2017 and December 2017, was still outstanding.

34. In relation to the aforementioned amounts, the Chamber observed that the Respondent did not deny the Claimant’s request to be awarded with his outstanding dues for the months of November 2017 and December 2017. Therefore, the Chamber agreed that, in application of the principle of pacta sunt servanda, the Claimant is entitled to received his remuneration for the aforementioned period, as contractually agreed (cf. clause XII of the contract and point I.2 above), i.e. 1,006,102*2= currency of Country D 2,012,204.

35. As a result, the Chamber established that the Respondent must pay the amount of 2,012,204 in the currency of Country D to the Claimant as outstanding salaries.

36. Moreover, the Chamber observed that, in addition to the payment of outstanding salaries, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract on the basis of the relevant employment contract.

37. In continuation, 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.

38. 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 members of the Chamber noted that no such clause appeared in the present matter.

39. 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. 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

40. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract until 30 June 2020 (i.e. the original date of termination of the contract). In this regard, the members of the Chamber observed, as detailed above, that under the contract, as from the date of termination of the contract until its original expiration date, the Respondent would have received the total amount of 30,183,060 in the currency of Country D (i.e. 1,006,102*30).

41. Consequently, the Chamber concluded that the amount of 30,183,060 in the currency of Country D serves as the basis for the determination of the amount of compensation for breach of contract.

42. 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.

43. Within this context, the DRC remarked that, following the termination of the contract, the Claimant concluded an employment contract with the club of Country B, Club E, valid as from 1 July 2018 until 31 December 2018, for a monthly salary in the amount of EUR 400. In this respect, the members of the DRC established that, accordingly, the Claimant would have earned from said contract the amount of EUR 2,400, equivalent to approx. 772,600 in the currency of Country D.

44. As a result of the difference between the above-mentioned amounts, the members of the Chamber highlighted that the amount due by the Respondent as compensation corresponds to 29,410,460 in the currency of Country D.

45. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant’s request and that the Respondent must pay to the Claimant the amount of 29,410,460 in the currency of Country D as compensation for breach of contract without just cause, which is considered by the Chamber to be a reasonable and justified amount as compensation.

46. Furthermore, the Chamber took note of the Claimant’s request to be awarded with interest “as of the date of effective payment”. In this respect, the Chamber understood that said petition appears to be unclear since, in fact, interest cannot be accrued as of the date of their payment. As a result, the Chamber decided to reject this specific request of the Claimant.

47. 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 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 2,012,204 in the currency of Country D.

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 29,410,460 in the currency of Country D.

5. In the event that the aforementioned amounts are not paid by the Respondent within the stated time limit, interest of 5% p.a. will fall due as of expiry of the stipulated time limit and the present matter shall be submitted, upon request, to FIFA’s 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 under points 3. and 4. 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 (CAS)

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

www.tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Enclosed: CAS directives