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 26 June 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 26 June 2019,

in the following composition:

Geoff Thompson (England), Chairman

Eirik Monsen (Norway), Member

Stéphane Burchkalter (France), Member

Joseph Antoine Bell (Cameroon), Member

Stefano La Porta (Italy), Member

on the claim presented by the player,

Player A, Country B

as Claimant / Counter-Respondent

against the club,

Club C, Country D

as Respondent / Counter-Claimant

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 30 May 2016, the club of Country D, Club C (hereinafter: the Respondent / Counter-Claimant) and the player of Country B, Player A (hereinafter: the Claimant / Counter-Respondent), signed an employment contract (hereinafter: the contract) valid from the date of signing until the end of season 2016/2017.

2. According to art. 2 of the contract, the Claimant / Counter-Respondent is entitled to receive a monthly net salary of EUR 3,000 payable at the end of each month.

3. According to art. 3.6, “should just cause or sporting just cause exist for the premature unilateral termination of this contract, then such party claiming just cause or sporting just cause shall file a complaint with the Complaints Board of the Football Association of Country D claiming just cause or sporting just cause. This contract shall be deemed terminated only upon the publication of a decision of the competent Football Association of Country D judicial body decreeing such termination”.

4. According to art. 5.5 of the contract, in case of dispute between the parties, “the competent board of the Football Association of Country D […] shall have exclusive jurisdiction over the matter, unless the player is not a player of Country D in which case the aggrieved party shall have the right to submit the dispute to the competent bodies of FIFA”.

5. Art. 4.7 of the contract provides that, in case the Claimant / Counter-Respondent is found to have participated in activities “in relation to the manipulation of football matches”, the Respondent / Counter-Claimant will have just cause to unilaterally terminate the contract.

6. Art. 4.12 provides the following: “whenever the player infringes any sub-article in this article 4, then the club shall have the right to take disciplinary action against the player, provided that the club grants the player a fair hearing prior to exercising such right, even if disciplinary action has been or is later taken by the Football Association of Country D, UEFA or FIFA”.

7. On 10 January 2017, the Claimant / Counter-Respondent put the Respondent / Counter-Claimant in default of payment of the total amount of EUR 9,000, corresponding to 3 monthly salaries for October, November and December 2016 (EUR 3,000 each), and gave 10 days for the Respondent / Counter-Claimant to remedy its default.

8. By letter dated 6 February 2017, the Claimant / Counter-Respondent terminated the contract, claiming that the Respondent / Counter-Claimant had not paid him the amount of EUR 12,000, adding the salary of January 2017 to the already claimed salaries in his default notice.

9. On 29 March 2017, the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant in front of FIFA for outstanding remuneration and compensation for breach of contract requesting the following:

a) EUR 12,000 as outstanding remuneration for the months of October, November, December 2016 and January 2017 (EUR 3,000 each);

b) EUR 9,000 as compensation for breach of contract, corresponding to the salaries from February 2017 to April 2017 included, “because last competitive game of the season 2016/2017 is on April 30th 2017”;

c) 5% p.a. interest on the total amount of the claim (EUR 21,000) as from 6 February 2017 until the date of effective payment;

d) That procedural costs be at the charge of the Respondent / Counter-Claimant;

e) Sporting sanctions to be imposed on the Respondent / Counter-Claimant.

10. In its response to the claim, the Respondent / Counter-Claimant challenged FIFA’s competence to adjudicate the present matter.

11. In particular, the Respondent / Counter-Claimant referred to the “exclusive competence to determine dispute vested in the Football Association of Country D Complaints board” in accordance with art. 3.6 of the contract which states that “should just cause or sporting just cause exist for the premature unilateral termination of this contract, then such party claiming just cause or sporting just cause shall file a complaint with the Complaints Board of the Football Association of Country D claiming just cause or sporting just cause. This contract shall be deemed terminated only upon the publication of a decision of the competent Football Association of Country D judicial body decreeing such termination”.

12. Upon FIFA’s request, the Respondent / Counter-Claimant gave further comments on the alleged competence of the deciding body within the Football Association of Country D (Football Association of Country D), providing FIFA with an extract of the statutes of the Football Association of Country D Complaint Board as well as a letter of the Football Association of Country D Vice-President claiming the fairness of the Football Association of Country D Complaint Board.

13. As to the substance, the Respondent / Counter-Claimant held that the Claimant / Counter-Respondent had been suspended on 17 December 2016 for 28 days following allegations of match-fixing following a Committee Meeting on that date. According to the minutes of said meeting, “the President explained that he had information that our goalkeeper [Claimant / Counter-Respondent] was directly involved with match-fixing at least 3 matches. […] On 16 December 2016, the Committee asked [Claimant / Counter-Respondent] to give him more information but he did not give any information.”, and the Committee allegedly contacted the police of Country D and the Football Association of Country D Integrity officer, regarding this allegation of match-fixing. The suspension was then extended with 28 more days on 24 January 2017.

14. Regarding the outstanding amounts, the Respondent / Counter-Claimant further argued that the salaries up to 16 December 2016 had been deposited to the Football Association of Country D, and that the Claimant / Counter-Respondent was informed that he could withdraw these salaries anytime.

15. Moreover, and subsidiarily in case FIFA deems to be competent, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent for breach of contract requesting the total amount of EUR 124,400 corresponding to:

a) EUR 9,000 as residual value of the contract;

b) EUR 113,400 to “liquidate the damages in favor of [the Respondent / Counter-Claimant]”. The requested amount is “equivalent to the obligations which [the Respondent / Counter-Claimant] had to enter into as a result of [Claimant / Counter-Respondent]’s unilateral termination”;

c) Instruct the Claimant / Counter-Respondent to retrieve his salaries from the Football Association of Country D.

16. In his replica, the Claimant / Counter-Respondent insisted on the competence of the FIFA DRC, basing himself on art. 5.5 of the contract which states: “the competent board of the Football Association of Country D […] shall have exclusive jurisdiction over the matter, unless the player is not a player of Country D in which case the aggrieved party shall have the right to submit the dispute to the competent bodies of FIFA”.

17. As to the substance, the Claimant / Counter-Respondent fully rejected the counterclaim of the Respondent / Counter-Claimant and emphasised that the allegations of match-fixing were ruled out by the police, and that he did not need to go to trial. He also added that, because of the accusation of match fixing and because of the Respondent / Counter-Claimant’s reactions in the media, his career and his family have suffered “irreparable damages”. In consequence of that, the Claimant / Counter-Respondent amended his claim, adding to the previously requested amounts the sum of EUR 100,000 as a “compensation for impairment of his reputation and dignity”. He also ask for 5% interest p.a. on this amount as from 6 February 2017.

18. In its duplica, the Respondent / Counter-Claimant reiterated its previous arguments. Regarding the claim for EUR 100,000 added by the Claimant / Counter-Respondent in his replica, the Respondent / Counter-Claimant deemed that this claim is not substantiated and does not derive from new elements. As to the match-fixing allegations, the Respondent / Counter-Claimant deemed that the investigation of the police of Country D was conducted because the police as well as the Inquiring Magistrate considered that “reasonable suspicion” existed.

19. Upon request, the Claimant / Counter-Respondent informed the FIFA administration that he did not sign any contract until August 2017 and that on 9 August 2017 he joined the club of Country B, Club E, as an amateur.

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 29 March 2017. Consequently, the 2017 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 2017 and 2018 editions 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 principle, 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 2019) the Dispute Resolution Chamber would, in principle, be 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. However, the Chamber acknowledged that the Respondent / Counter-Claimant contested the competence of FIFA, referring to the “exclusive competence to determine dispute vested in the Football Association of Country D Complaints board” in accordance with art. 3.6 of the contract which states that “should just cause or sporting just cause exist for the premature unilateral termination of this contract, then such party claiming just cause or sporting just cause shall file a complaint with the Complaints Board of the Football Association of Country D claiming just cause or sporting just cause. This contract shall be deemed terminated only upon the publication of a decision of the competent Football Association of Country D judicial body decreeing such termination”.

4. In this respect, the Chamber took note that the Respondent / Counter-Claimant provided an extract of the statutes of the Football Association of Country D Complaint Board as well as a letter of the Football Association of Country D Vice-President claiming the fairness of the Football Association of Country D Complaint Board.

5. On the other hand, the Chamber noted that the Claimant / Counter-Respondent insisted on the competence of the FIFA DRC to adjudicate on his claim against the Respondent / Counter-Claimant, basing himself on art. 5.5 of the contract (cf. point I.4).

6. Taking into account all the above, the Chamber emphasised that, in accordance with art. 22 lit b) of the 2019 edition of the Regulations on the Status and Transfer of Players, it is, in principle, competent to deal with employment-related disputes of an international dimension; the parties may, however, explicitly opt in writing for any disputes arisen between them to be decided by an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs that has been established at national level within the framework of the association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable on the parties. With regard to the standards to be imposed on an independent arbitration tribunal existing at national level, the Chamber referred to the FIFA Circular no. XXXX dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

7. 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 actually contained a jurisdiction clause.

8. Having said this, the members of the Chamber turned their attention to art. 3.6 of the contract, which stipulates that the Complaints Board of the Football Association of Country D would be competent for disputes related to the premature unilateral termination of the contract. At the same time, however, the members of the Chamber highlighted that art. 5.5 of the contract explicitly stipulates that a foreign player shall have the right to submit the dispute to the competent bodies of FIFA.

9. In view of the above, the members of the DRC were of the opinion that art. 5.5 clearly provides for the possibility of lodging a contractual dispute in front of FIFA whenever the player is not a player of Country D. Considering that the Claimant / Counter-Respondent is a national of Country B, the members of the Chamber deem that art. 5.5 prevails in the present matter and, therefore, art. 3.6 of the contract cannot be applicable.

10. In view of the above, the Chamber established that the Respondent / Counter-Claimant’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC 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.

11. 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 (editions 2016, 2018 and June 2019), and considering that the present matter was submitted to FIFA on 29 March 2017, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

12. 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.

13. In continuation, the members of the Chamber took into account that, on 6 February 2017, the Claimant / Counter-Respondent notified the Respondent / Counter-Claimant of the termination of the contract on the basis of four months outstanding remuneration, after having sent a default notice on 10 January 2017. The Respondent / Counter-Claimant, for its part, submits that the Claimant / Counter-Respondent terminated the contract without just cause, alleging that the Claimant / Counter-Respondent had been suspended due to match-fixing activities and that his salaries had been deposited at the Football Association of Country D.

14. In view of the aforementioned diverging positions of the parties, the DRC highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant / Counter-Respondent had just cause to terminate the contract on 6 February 2017.

15. In this respect, first of all, the DRC recalled that, according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

16. In continuation, having duly taken note of the documentation presented by the parties, the members of the Chamber observed that the Respondent / Counter-Claimant had not presented evidence that the salaries had been effectively paid to the Claimant / Counter-Respondent.

17. What is more, the members of the Chamber wished to emphasize that the contract concluded between the parties does not provide for the possibility to deposit or pay the Claimant / Counter-Respondent’s remuneration via the Football Association of Country D.

18. Furthermore, the members of the Chamber wished to emphasise that, in any event, the alleged suspension of the Claimant / Counter-Respondent could not be used by the Respondent / Counter-Claimant as a justification for its non-compliance of the contractually agreed obligations, namely the timely payment of the Claimant / Counter-Respondent’s salary.

19. As a consequence of the aforementioned considerations and taking into account the documentation presented by the parties to the dispute, the Chamber established that four monthly salaries, corresponding to October 2016, November 2016, December 2016 and January 2017, had fallen due and remained outstanding at the time of the termination of the contract by the Claimant / Counter-Respondent. Consequently, the Chamber concurred that the Respondent / Counter-Claimant had seriously neglected its financial contractual obligations towards the Claimant / Counter-Respondent.

20. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber decided that the Claimant / Counter-Respondent had just cause to unilaterally terminate the contract on 6 February 2017 and that the Respondent / Counter-Claimant is to be held liable for the early termination of the contract with just cause by the Claimant / Counter-Respondent.

21. Bearing in mind the previous considerations, the Chamber turned its attention to the consequences of the early termination of the contract with just cause by the Claimant / Counter-Respondent.

22. First of all, the DRC concurred that the Respondent / Counter-Claimant must fulfil its obligations as per the employment contract up and until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the Respondent / Counter-Claimant is liable to pay to the Claimant / Counter-Respondent the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 12,000 corresponding to the salaries relating to October, November and December 2016 as well as January 2017.

23. In addition, taking into consideration the Claimant / Counter-Respondent’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant / Counter-Respondent interest at the rate of 5% p.a. on the outstanding amount of EUR 12,000 as of 7 February 2017 until the date of effective payment.

24. Furthermore, the DRC decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to the aforementioned outstanding remuneration.

25. In this context, the Chamber outlined that, in accordance with the said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

26. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains 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.

27. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent 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.

28. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant / Counter-Respondent under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation.

29. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant / Counter-Respondent under the terms of the employment contract as from its date of termination with just cause by him, i.e. 6 February 2017, until 30 April 2017 as indicated by the Claimant / Counter-Respondent, and concluded that he would have received in total EUR 9,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 9,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

30. In continuation, the Chamber verified as to whether the Claimant / Counter-Respondent 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.

31. In this regard, the members of the Chamber noted that the Claimant / Counter-Respondent had not signed any new employment contract within the period of time between the termination of the contract and its original date of expiry and, thus, had not been able to mitigate his damages. In this context, the Chamber found it reasonable that the Claimant / Counter-Respondent had not been able to find new employment within the relevant period of three months only.

32. Consequently, on account of all of the above-mentioned considerations, the Chamber decided that the Respondent / Counter-Claimant must pay the amount of EUR 9,000 as compensation for breach of contract in the case at hand.

33. In addition, taking into account the Claimant / Counter-Respondent’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent interest of 5% p.a. on the amount of compensation as of 30 March 2017 until the date of effective payment.

34. The DRC concluded its deliberations in the present matter establishing that any further claim lodged by the Claimant / Counter-Respondent was rejected. Equally, the DRC decided to reject the counterclaim of the Respondent / Counter-Claimant in its entirety.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Player A, is admissible.

2. The claim of the Claimant / Counter-Respondent is partially accepted.

3. The counterclaim of the Respondent / Counter-Claimant, Club C is rejected.

4. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 12,000 plus 5% interest p.a. as from 7 February 2017 until the date of effective payment.

5. The Respondent / Counter-Claimant has to pay to the Claimant/ Counter-Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 9,000 plus 5% interest p.a. as from 30 March 2017 until the date of effective payment.

6. In the event that the amounts due to the Claimant / Counter-Respondent in accordance with the above-mentioned numbers 4. and 5. are not paid by the Respondent / Counter-Claimant within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

7. Any further claim lodged by the Claimant / Counter-Respondent is rejected.

8. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant 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 art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl.: CAS directives