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 7 March 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 7 March 2019,

in the following composition:

Geoff Thompson (England), Chairman

Stijn Boeykens (Belgium), member

Daan de Jong (The Netherlands), 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 2 October 2017, the player of Country B Player A (hereinafter: the Claimant or the player) and the club of Country D Club C (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 2 May 2018.

2. According to art. 4.2, par. 1 and 2 of the contract, the Claimant was entitled to a salary of USD 190,000, payable as follows:

a) USD 50,000 as advance payment at the signature of the contract;

b) USD 140,000 in “seven equal monthly payments at an amount of USD 20,000 per month from October 2017 to April 2018.

Exchange rate: 1 USD – 3,66 [Currency of Country D] Currency of Country D”.

3. Pursuant to art. 4.2, par. 3.2, of the contract, the Claimant was also “entitled to receive Match participation bonus at amount of USD 23,000 in the event the player participate more than 50% of the official matches per month. Also he will receive the bonus if the reason for not playing is not the old injury (muscle below the stomach)”; bonus which was payable at the end of the month.

4. Art. 4.4 of the contract provides that “the club shall provide the player suitable furnished accommodation in City E during the term of the contract”.

5. In accordance with art. 4.5 of the contract, “the player will be part of the club’s collective bonus scheme structured in accordance with the club’s policy”.

6. Pursuant to art. 4.8 of the contract, the Respondent committed to provide the player “and his wife and two kids with (1) ticket airline on business class rate from Country F to City E (round trip) after actual booking”.

7. Art. 4.9 of the contract stipulates that the Respondent shall pay the Claimant “schooling fees at total amount of USD 15,000 provided submission payment receipt by the player”.

8. Moreover, art. 6.4 of the contract, stipulates that the “in the event the player terminates the contract without just cause in accordance with art. 17 of FIFA Regulations on the Status and Transfer of Players, the Player shall promptly pay to the Club, as compensation for the breach, the amount of USD 3,000,000”.

9. Furthermore, according to art. 6.5 of the contract, “in the event the club terminates the contract without just cause in accordance with art. 17 of FIFA Regulations on the Status and Transfer of Players, the Club shall promptly pay to the Player, as compensation for the breach, an amount equal to 30% of the remaining salaries until the expiry of the contract”.

10. On 11 January 2018, the Respondent sent a letter to the Claimant, by means of which it terminated the contract with immediate effect on the basis of art. 6.5 of the contract and informed the player that it would pay him, within the next five days, the amount of currency of Country D 261,749.03, corresponding to:

a) currency of Country D 180,992.90 for “unpaid salary of December 2017, plus 10 days of January 2018 inclusive of all bounces”;

b)currency of Country D 80,756.13 for “equal to 30% of the remaining salaries of months (21 days of January – February – March – April 2018)”.

11. On 3 February 2018, the Claimant replied to the Respondent’s aforementioned letter arguing that art. 6.5 of the contract was not reciprocal and, therefore, was null and void. As a consequence thereof, the Claimant requested the payment, within 15 days, of:

- USD 80,000, corresponding to the remaining value of the contract;

- currency of Country D 25,000 for an outstanding collective bonus;

- USD 23,000 for a personal bonus;

- rental costs of the house paid by the player for the months of January and February 2018.

12. On 20 February 2018, the Claimant sent a further letter to the Respondent, reiterating his previous requests.

13. On 25 March 2018, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting the amount of USD 140,901.67, plus 5 % interest p.a. as of 11 January 2018, broken-down as follows:

a) USD 80,000 as compensation for breach of contract, corresponding to the monthly salaries as of January until April 2018;

b) USD 23,000 for an outstanding “personal bonus” in accordance with art. 4.5 of the contract;

c) USD 10,105 as reimbursement of the costs borne by the player for the rental of an apartment as of the month of January 2018;

d) USD 12,796.67 as “refund of costs for the return flight tickets” for the player and his family;

e) USD 15,000 as “refund of schooling fees for the player’s kids” as per art. 4.9 of the contract.

Furthermore, the player requested the imposition of sporting sanctions on the club.

14. In his claim, the Claimant argued that the Respondent terminated the contract without just cause on the basis of an invalid clause, namely art. 6.5 of the contract. In this regard, the Claimant argued that such clause was disproportionate and not reciprocal, in particular compared to the content of art.

6.4, which determined the compensation payable by the player in case he terminated the contract without just cause.

15. Moreover, the Claimant stressed that, despite the Respondent terminated the contract on 11 January 2018, he continued to train with the team and offered his services to the Respondent until he lodged his claim.

16. Furthermore, the Claimant acknowledged that the Respondent paid him, “after one month from the last warning notice”, the amount of currency of Country D 25,000 corresponding to the collective bonus he requested in his previous letters.

17. As to the claimed “personal bonus”, the Claimant maintained that the same referred to “personal sporting performances (assists, goals, presences)” pursuant to art. 4.5 of the contract.

18. In addition, the Claimant argued that, contrary to the content of art. 4.4 of the contract, the Respondent did not pay his costs for accommodation as of the month of January 2018. Consequently, the Claimant affirmed that it had to bear such costs by himself and, in this respect, he submitted a “copy of tax invoice” allegedly issued by an hotel on 9 March 2018, for the period between 1 January and 1 March 2018, in order to corroborate his allegation.

19. As to the return flight tickets, the Claimant requested the amount of USD 12,796.97 calculated on the alleged cost, for 4 people, of the ticket “for the route City G-City H”.

20. In his reply, the Respondent affirmed that it paid the Claimant the salary and the “match participation bonus” for the months of October and November 2017 and maintained that it paid him the following “collective bonus”:

a) on 8 November 2017, currency of Country D 10,000 allegedly for the “first collective bonus”;

b)on 19 December 2017, currency of Country D 5,000, allegedly for “another collective bonus”.

21. Moreover, the Respondent affirmed that, after the termination of the contract, it made a payment of currency of Country D 157,380 to the Claimant on 22 January 2018, allegedly corresponding to the salary and “the match participation bonus” for the month of December 2017.

22. Furthermore, the Respondent averred that it paid the Claimant the amount of currency of Country D 25,000 for “pending collective bonuses”, as follows:

a) on 15 February 2018, currency of Country D 15,000;

b)on 15 March 2018, currency of Country D 10,000.

23. As a consequence of the above-mentioned payments, the Respondent acknowledged that only the following amounts were still outstanding:

a) currency of Country D 23,612.90 corresponding to the first 10 days of the month of January 2018;

b)currency of Country D 80,756.15 corresponding to the 30% of the remaining salaries, pursuant to art. 6.5 of the contract.

24. As to the Claimant’s request for the reimbursement of the accommodation costs, in the alternative that such costs were not considered as already included in the compensation set out under art. 6.5 of the contract, the Respondent acknowledged that the Claimant was entitled to a reimbursement for the first 10 days of the month of January 2018 only which, based on the invoice submitted the Claimant, correspond to the amount of USD 1,718.61.

25. Furthermore, as to the claimed schooling fees under art. 4.9 of the contract, the Respondent maintained that it did not have any obligation to reimburse them, as the Claimant did not provide any evidence that it incurred into such costs.

26. In his replica, the Claimant amended his claim requesting the final following amounts, plus 5% interest p.a. as of 11 January 2018:

a) USD 15,766.67 as outstanding salary for the period from 1 until 11 January 2018;

b) USD 156,233.33 as compensation for breach of contract for the period starting on 12 January 2018 until the end of April 2018, including salaries (namely USD 20,000 per month) and the match participation bonus (i.e. USD 23,000 monthly) under art. 4.2, par. 3.2 of the contract;

c) currency of Country D 5,000 “as winning home match bonus plus the pro rata quote of the Promotion Bonus”;

d) USD 20,966.92 as reimbursement of the costs for the rental of the apartment (based on an alleged daily refund of USD 171,86 for a total 122 days);

e) USD 12,796.97 for the return flight tickets;

f) USD 15,000 as reimbursement of “schooling fees for the player’s kids”.

27. First, the Claimant averred that his monthly remuneration amounted to USD 43,000 and argued that the payments made by the Respondent for the months of October, November and December 2017 confirmed such circumstance. In particular, the Claimant maintained that his monthly remuneration was composed of:

a) USD 20,000 for the salary as per art. 4.2 par. 2 of the contract; and

b) USD 23,000 for the participation bonus under art. 4.2, par. 3.2 of the contract.

28. In this regard, the Claimant affirmed that he played in all the club’s matches (allegedly 9 in total) until the termination of the contract and never suffered any kind injury.

29. In continuation, the Claimant alleged that, in view of the payments made by the Respondent to him for the collective bonuses, the Respondent used the following scheme: currency of Country D 10,000 for each away match won and currency of Country D 5,000 for each home match won. On account of that, the Claimant maintained that he was entitled to a bonus of currency of Country D 5,000 for a home match won by the Respondent on 29 December 2017.

30. With reference to the flight tickets, the Claimant reiterated his requests, alleging that, “in light of the club’s silence”, he had to buy four tickets in economic class only, due to the lack of financial means.

31. With its final comments, the Respondent reiterated its previous arguments and committed to pay the following amounts to the Claimant:

a) USD 6,451.61 for the salary of the first 10 days of January 2018;

b)USD 22,064.51 corresponding to the 30% of the remaining salaries in accordance with art. 6.5 of the contract.

32. Moreover, the Respondent pointed out that the Claimant’s monthly fixed remuneration amounted to USD 20,000 in accordance with art. 4.2 par. 2 of the contract, while the further amount of USD 23,000 was not guaranteed but, rather, a bonus depending on the Claimant’s performance pursuant to art. 4.2 par. 3.2 of the contract. Therefore, the Respondent argued that such bonus could not be taken into account for the calculation of the compensation.

33. Furthermore, as to the requested collective bonus, the Respondent affirmed that, with reference to the match the player referred to, no bonus was payable to any player of the team. In this context, the Respondent also stressed that no promotion bonus had been fixed by the club.

34. As to the requested accommodation allowance, the Respondent insisted on the fact that the same was payable until 11 January 2018 only, in the total amount of USD 209,67. In this respect, the Respondent submitted a further calculation, based on the costs for taxes.

35. Upon request of the FIFA Administration, the Claimant informed that it did not conclude any employment contract with other club after 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 25 March 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 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. At this point, the Chamber was eager to emphasize that, contrary to the information contained in FIFA’s letter dated 1 March 2019, by means of which the parties were informed of the composition of the Chamber, the member X refrained from participating in the deliberations of the case at hand due to certain personal circumstances and, in order to comply with the prerequisite of equal representation of the club’s and player’s representatives, also the member XX refrained from participating. Thus, the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations.

4. 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 25 March 2018, the 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. First, the Chamber noted that the parties entered into an employment contract valid as of 2 October 2017 until 2 May 2018, providing a monthly salary of USD 20,000 payable in seven instalments.

7. In this context, the members of the Chamber noted that, according to art. 4.2 par. 3.2 of the contract, the Claimant was also entitled to a “Match participation bonus at amount of USD 23,000 in the event the player participate more than 50% of the official matches per month. Also he will receive the bonus if the reason for not playing is not the old injury (muscle below the stomach)”.

8. Moreover, the members of the Chamber took note that it remained undisputed that the Respondent paid the Claimant the monthly salary and the above-mentioned match participation bonus for the period between October and December 2017.

9. Furthermore, the DRC duly noted that, on 11 January 2018, the Respondent sent a letter to the Claimant, by means of which it terminated the contract on the basis of art. 6.5 of the contract.

10. After having taken note of the above, the DRC also took note of the position of the parties in the present matter. In this respect, the Claimant argued that the Respondent terminated the contract without just cause, on the basis of an invalid clause.

11. Moreover, the Claimant maintained that his monthly remuneration was composed of the basic salary and the match participation bonus under art. 4.2 par. 3.2 of the contract, for a total amount of USD 43,000. As such, the Claimant requested the payment of his monthly remuneration for four months, namely for the period between January and April 2018, in the amount of USD 172,000.

12. Finally, the DRC acknowledged that the Claimant also requested the payment of an alleged match bonus, the reimbursement of the costs for the rental of an apartment until the expiry date of the contract, the refund of costs of return flight tickets as well as of “schooling fees for the player’s kids”.

13. Equally, the members of the Chamber took note of the position of the Respondent, which acknowledged having terminated the contract in accordance with clause 6.5 of the contract and argued that the Claimant was only entitled, pro rata, to the monthly salary for the month of January 2018 until the date of termination of the contract, as well as 30% of the remaining salaries until the end of the contract, as stipulated in the aforementioned clause.

14. In this respect, the Respondent pointed out that the monthly remuneration of the player was solely composed of the monthly salary under art. 4.2 par. 1 and 2 of the contract, being excluded the match participation bonus under the following par. 3.2 which, in the Respondent’s view, could not be taken into account as it depended on the player’s performance.

15. In addition, the Respondent averred that the claimed accommodation allowance was already included in the compensation set out under art. 6.5. In the alternative, the Respondent acknowledged that such allowance was supposed to be limited to the first ten days of January 2018, in the total amount of USD 1,718.61. Finally, the Respondent requested the rejection of any further claim of the player.

16. In view of the aforementioned positions, the members of the Chamber wished to emphasise that both parties acknowledged that the contract was terminated by the Respondent on 11 January 2018 on the basis of art. 6.5 of the contract. In this respect the DRC deemed necessary to recall that the aforementioned provision was applicable “in the event the club terminates the contract without just cause”. Consequently, the members of the Chamber came to the first conclusion that it remained undisputed that the Respondent terminated the contract without just cause on 11 January 2018.

17. On account of the aforementioned considerations, the members of the Chamber concurred that the main issue in the present dispute, considering the diverging position of the parties, was to determine the consequences of the termination of the contract without just cause by the Respondent.

18. In this respect, the Chamber came to the first conclusion that, as the Respondent terminated the contract without just case, the latter, in accordance with art. 17 par. 1 of the Regulations, is liable to pay compensation for breach of contract to the Claimant.

19. In continuation, the Chamber pointed out that 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.

20. In application of the relevant provision, the Chamber held that it first of all had to assess 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 recalled that articles 6.4 and 6.5 of the contract stipulated a compensation clause, which was drafted as follows:

- Art. 6.4: “in the event the player terminates the contract without just cause in accordance with art. 17 of FIFA Regulations on the Status and Transfer of Players, the Player shall promptly pay to the Club, as compensation for the breach, the amount of USD 3,000,000”;

- Art. 6.5: “in the event the club terminates the contract without just cause in accordance with art. 17 of FIFA Regulations on the Status and Transfer of Players, the Club shall promptly pay to the Player, as compensation for the breach, an amount equal to 30% of the remaining salaries until the expiry of the contract”.

21. On account of the above, the members of the Chamber observed that the aforementioned clause was not reciprocal and, in view of the general principle of proportionality and of the principle of equal treatment, unanimously agreed that said clause cannot be taken into consideration in the determination of the amount of compensation.

22. 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. 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.

23. In so doing, the Chamber recalled that, according to the Claimant, his monthly remuneration was composed of the basic salary and the match participation bonus under art. 4.2 par. 3.2 of the contract, for a total amount of USD 43,000. Conversely, in the Respondent’s opinion, the monthly remuneration was exclusively composed of the player’s basic salary, namely USD 20,000.

24. In view of the diverging positions of the parties, the members of the DRC considered necessary to assess the monthly remuneration of the Claimant, in order to be able to determine the compensation for breach of contract payable to the Claimant.

25. In this respect, the Chamber first noted that the Respondent paid to the Claimant the basic salary and the aforementioned match participation bonus for the months as of October until December 2017, i.e. USD 43,000. What is more, the DRC took note that, pursuant to art. 4.2 par. 3.2 of the contract, the Claimant “will receive the bonus if the reason for not playing is not the old injury (muscle below the stomach)”.

26. In continuation, the DRC considered that the Claimant, until the termination of the contract, received a monthly remuneration of USD 43,000, and that, according to the art. 4.2 par. 3.2 contract, only the presence of the “old injury” would have justified the non-payment of the aforementioned match participation bonus. In this respect, the members wished to emphasise that it remained undisputed by the parties that said “old injury” was not present and, as such, the Claimant received a monthly remuneration of USD 43,000.

27. On account of the aforementioned considerations, the members of the DRC concluded that the monthly remuneration, which the Claimant was entitled to, amounted to USD 43,000.

28. With the above in mind, on the basis of the aforementioned monthly remuneration, the members of the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the contract as from its termination and concluded that the Claimant would have been entitled to receive USD 172,000, had the contract been executed until its expiry date.

29. In continuation the Chamber assessed as to whether the Claimant has 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. According to the constant practice of DRC, such remuneration under a new employment contract(s) 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.

30. In respect of the above, the Chamber recalled that the Claimant had not signed any other employment contract after the termination of the one at stake in the present matter and, therefore, he was not able to mitigate his damages.

31. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC decided that the club must pay the player the amount of USD 172,000 which is to be considered a reasonable and justified amount of compensation for breach of contract in the matter at hand.

32. Furthermore, as to the reimbursement of the accommodation costs from the month of January 2018, as requested by the Claimant, the members of the DRC noted that the relevant clause of the contract (i.e. art. 4.4) only stipulated the Respondent’s obligation to provide the Claimant with an accommodation during the term of the contract. Nevertheless, the DRC also took note that the Respondent acknowledged that the player was entitled to a reimbursement for the first ten days of January 2018, namely until the termination of the contract, in the total amount of USD 1,718.61. Consequently, the members of the Chamber decided that the Claimant is entitled to receive to receive a reimbursement for the aforementioned costs, in the amount of USD 1,718.61.

33. Equally, as regards the Claimant’s claim pertaining to air tickets, on the basis of the information provided by FIFA Travel and referring to the relevant terms of the employment contract, the Chamber decided that the Respondent must pay to the Claimant the amount of CHF 3,473, corresponding to the value of a return ticket as per art. 4.8 of the contract.

34. 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 aforementioned amounts as of the date on which the claim was lodged, i.e. 25 August 2018, until the date of effective payment.

35. In continuation, as to the Claimant’s request for the payment of an outstanding match bonus allegedly agreed between the parties, the DRC stressed that, in accordance with art. 12 par. 3 of the Procedural Rules, pursuant to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof, it would had been up to the Claimant to demonstrate the existence of such an agreement for match bonuses. Nevertheless, the Chamber deemed it appropriate to point out that the request for said match bonus had no contractual or regulatory basis and no sufficient evidence had been submitted in order to demonstrate the contrary. Consequently, the members of the Chamber had no other option than to reject that part of the player’s claim.

36. Furthermore, as to the claim for the reimbursement of the “schooling fees” as per art. 4.9 of the contract, taking into account the documentation presented by the Claimant in support of his petition, the DRC noted that the payment of the relevant amount in accordance with art. 4.9 of the contract was subject to the submission of payment receipts. Nevertheless, the members of the Chamber noted that the Claimant did not provide said receipts nor any evidence that he incurred in the relevant costs. As a consequence thereof, the members of the Chamber had to reject also this part of the claim.

37. The members of the Chamber concluded their deliberations by rejecting any further claim of the player.

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, compensation for breach of contract in the amount of USD 173,718.61 and CHF 3,473, plus 5% interest p.a. on said amounts as of 25 August 2018 until the date of effective payment.

3. In the event that the aforementioned amounts plus interest are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received.

*****

Note relating to the motivated decision (legal remedy):

According to 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 & Compliance Officer

Encl.: CAS directives