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 6 December 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 6 December 2018,

in the following composition:

Geoff Thompson (England), Chairman

Eirik Monsen (Norway), member

Jérôme Perlemuter (France), 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 January 2016, the Futsal 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), signed an employment contract valid as from its date of signature until 30 April 2017 (hereinafter: the contract).

2. According to art. 3, par. 3.1 of the contract, the Claimant was entitled to a monthly salary of 45,000 payable on the 10th day of the following month.

3. On a not specified date, the Claimant and the Respondent signed an amendment to the contract (hereinafter: the amendment) whereby they agreed that the player was entitled to certain bonuses, amongst which a monthly bonus of USD 8,000 payable as follows:

- “for 5 months in the 2015-2016 season (January 2016 – May 2016 included)”;

- “for 9 months in the season 2016-2017 season (August 2016 - April 2017 included)”.

4. On 11 December 2016, the Claimant sent a letter to the club’s general officer (Manager E) whereby he stated that the club had proposed him to terminate the contract with the payment of two monthly salaries. In the same letter, the Claimant proposed to terminate the contract with the payment of “compensation corresponding to November, December [2016] and January 2017”.

5. By means of the “agreement for termination of Employment Agreement no. 14 of January 18, 2016” dated 30 December 2016 (hereinafter: the termination agreement), the Claimant and the Respondent terminated the employment contract with immediate effect.

6. Article 2 of the termination agreement provides that “the club and the player have no mutual claims to each other, including financial claims” while, according to article 3 of the termination agreement, the Claimant “confirms he has received all the amounts from the Club and that the Club has fulfilled all its obligations with regard to [the player]”.

7. On 15 February 2017, the Claimant sent a letter to the Respondent, by means of which he affirmed that, on 5 December 2016, the Respondent informed him that it had the intention to terminate the employment contract. “As a result of said intention”, the Claimant acknowledged that the Respondent paid him his salary of December 2016 and a flight ticket from Country D to Country B. The Claimant further stated that he left Country D in December 2016, without concluding any termination agreement with the Respondent. As a consequence, the Claimant requested the Respondent to clarify, within five days, if the “employment contract with the club [was] still in force” and, in the affirmative, to inform him “when the club will be sending him his flying back ticket to Country D”.

8. On 7 March 2017, the Claimant sent a further letter to the Respondent, reiterating his requests as per his letter of 15 February.

9. On 18 March 2017, the Claimant sent an e-mail to the alleged club’s interpreter, with the following content: “Dear Manager E and Interpreter F, as per as your e-mail and whatsapp message sent on March 18, if I do not sign, the document that you sent me, I will not be able to play for any club nor receive any salary until the end of April 17, therefore, there is no other solution to me than sign, under duress, said document! I do not agree with its terms, but as informed before, Club C didn’t gave me any other alternative than signing it. As a consequence, please, find attached hereto the signed document. Please send my counterpart of the document so that I will be able to prove that I am not under contract to Club C anymore (sic). I would ask you to issue my ITC as soon as possible, in order to allow me to keep playing futsal!”.

10. On 26 May 2017, the Claimant lodged a claim against the Respondent for breach of contract in front of FIFA, requesting the amount of USD 108,800 plus 5% interest p.a. as from the due dates, broken-down as follows:

a) USD 32,000 as compensation for breach of contract, corresponding to the residual value of the contract for the period between January and April 2017;

b) USD 28,800 as compensation for the breach of contract during the protected period;

c) USD 48,000 for moral damages.

In the alternative to points a), b) and c) above, the Claimant requested outstanding remuneration for the period between January and 18 March 2017, in the amount of USD 20,000, plus 5% interest p.a. as from the due dates.

Furthermore, the Claimant requested sporting sanctions on the Respondent.

11. In his claim, the Claimant affirmed that the Respondent terminated the contract without just cause on 5 December 2016, as it allegedly requested the player to sign a termination agreement on that date.

12. In continuation, the Claimant alleged that, as a consequence of his refusal, the club started “to threaten” him that his salary for December 2016 will not be paid until he signed the termination agreement.

13. Furthermore, the Claimant stated that he left Country D in December 2016 and that he sent his letter to the club on 7 March 2017 (cf. point 8 above) because he received an offer from a Club of Country B, but the Respondent “denied issuing his ITC”.

14. In this regard, the Claimant maintained that the Respondent, on 16 and 17 March 2017, informed him that, in order to be transferred to a new club, he should sign the termination agreement.

15. In this context, the Claimant also averred that, on 18 March 2017, the Respondent sent him the termination agreement and that he had “no option but to sign” it. Consequently, as he allegedly signed the document “under duress”, the player argued that his signature was invalid.

16. Finally, the Claimant stressed that, after he signed the termination agreement, the Respondent paid him the salary of the month of December 2016 and, on 24 March 2017, his new Club of Country B received the ITC and he eventually signed his new employment contract.

17. In its reply, the Respondent rejected the Claimant’s argumentations and, first, pointed out that it agreed with the player to terminate the contract with effect as of 30 December 2016, date on which the latter signed the termination agreement. Moreover, the Respondent affirmed that it bought a flight ticket to Country B for the player, who eventually left on 14 December 2016.

18. Moreover, the Respondent pointed out that the existence of an agreement on the termination of the contract was confirmed by the fact that the player did not show up at the restart of the team’s preparation after the winter break, on 4 January 2017.

19. In this context, the Respondent alleged that the Claimant, since 4 January 2017, started to train and play with a new club, the Club of Country B Club G and, only in March 2017, when he decided to be registered with it, the Claimant requested the Respondent to deliver to the new club the documentation attesting the termination of the contract. Finally, the Respondent acknowledged that the Claimant returned a signed copy of the termination agreement to it.

20. Furthermore, the Respondent highlighted that the correspondence allegedly sent by the Claimant to the Respondent could not be taken into account as it was sent to persons not authorised to represent the club. In particular, the Respondent averred that, pursuant to the club’s internal instructions allegedly notified to each player at the signature of the contract, the correspondence had to be addressed to the club’s General Director (Director H, who signed the contract) or the official e-mail address of the Respondent.

21. Along those lines, the Respondent affirmed that it paid the Claimant the salary for the month of December 2016 “in two tranches till February 1, 2017” and that, by signing the termination agreement, the player and the club agreed they did not have any claim towards each other.

22. In his replica, the Claimant contested the arguments of the Respondent and maintained that the termination agreement was executed on 18 March 2017 and not on 30 December 2016, as alleged by the Respondent.

23. Moreover, the Claimant affirmed that he left the club during the winter holidays with the latter’s authorisation and he did not return for the restart of the preparation on 4 January 2017 because, despite his alleged requests, the Respondent neither informed him about the starting date of the team’s preparation nor provided him with a return flight ticket from Country B.

24. In its duplica, the Respondent reiterated his previous arguments and affirmed that, on 5 December 2016, “a technical council of the club took place, at which it was informed about the reached agreement on the termination of the contract by mutual agreement with the player”.

25. Moreover, the Respondent affirmed that, on 13 December 2017, all the players had been notified by the club’s coach about the start of the trainings on 4 January 2017.

26. Upon request of the FIFA administration, the Claimant informed that he was unemployed as from 30 December 2016 until 29 March 2017 and that, on 29 March 2017, he signed an employment contract with the club, Club J. According to such employment contract, valid as from its date of signature until 15 December 2017, the Claimant was entitled to a monthly salary of 8,000.

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 26 May 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; 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 and 2 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 a Player of Country B and a Club of Country D.

3. In continuation, 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 2018), and considering that the present claim was lodged on 26 May 2017, the 2016 edition of said regulations (hereinafter: 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. 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.

5. First, the Chamber noted that the Claimant and the Respondent concluded an employment contract valid as from 18 January 2016 until 30 June 2017.

6. Furthermore, the members of the Chamber took note that that it remained undisputed that the player left the club in December 2016 and that the termination agreement, indicating the date of 30 December 2016, was signed by the Claimant and the Respondent.

7. Having acknowledged the above, the DRC took note that the Claimant alleged that he signed the termination agreement under duress and, what is more, only on 18 March 2017. In particular, the Claimant affirmed that the Respondent would not release the ITC for the transfer to another club until he signed the aforementioned termination agreement. On account of the above, the Claimant maintained that the Respondent terminated the contract without just cause and requested the payment of compensation for breach of contract and moral damages.

8. The Dispute Resolution Chamber equally took due note of the fact that the Respondent, for its part, refuted the Claimant’s allegations and affirmed that the termination agreement had been validly concluded on the date indicated therein, namely on 30 December 2016.

9. In view of the aforementioned dissent positions of the parties in respect of the question as to whether the agreement on the termination of the contract had been signed under duress by the Claimant and on which date, the members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

10. With the above in mind, the members of the Chamber concurred on the fact that it was up to the Claimant to demonstrate that he signed the termination agreement under duress and, consequently, that said agreement had not been validly concluded.

11. Having stated the above, the members of the Chamber turned their attention to the evidence submitted by the Claimant in order to support his argumentations and noted that the latter only provided an e-mail dated 18 March 2017 (cf. point I.9. above) whereby he stated that he signed the termination agreement under duress.

12. On account of the above-mentioned considerations and in view of the documentation submitted by the Claimant, the members of the Chamber concurred that such documentation was not sufficient to demonstrate, in and on itself, that he signed the termination agreement under duress.

13. Consequently, the members of the Chamber concluded that, in accordance with the principle of the burden of the proof, the Claimant did not prove that he signed the termination agreement under duress. Moreover, the members of the Chamber were comforted with such conclusion by the fact that, according to the correspondence sent by the Claimant to the Respondent on 11 December 2016 (cf. point I.4.), the player himself was willing to conclude a termination agreement with the club.

14. Therefore, on account of all the aforementioned considerations, the Dispute Resolution Chamber decided that, since the Claimant had not been able to prove that the termination agreement had not been validly concluded between himself and the Respondent, there was no possibility for the Chamber to enter into the question whether or not the relevant employment contract had been breached.

15. All the above led the Dispute Resolution Chamber to conclude that the claim of the player has to be rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player A, is rejected.

*****

Note relating to the motivated decision (legal remedy):

According to article 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