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 15 November 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 November 2018,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (Country F), member

Wouter Lambrecht (Belgium), member

on the claim presented by the player,

Player A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 20 March 2017, the player of Country B, Player A (hereinafter: Claimant), and the club of Country D, Club C (hereinafter: Respondent), concluded an employment contract valid as of the date of signature until 31 December 2018 (hereinafter: contract).

2. Pursuant to clause 3 of the contract, the Claimant was entitled to a salary of “$” 1,500 per month, payable on the 30th day of each month, “which amount shall be reviewable as and when the necessity arises taking into account the economic situation prevailing at each particular time”.

3. In accordance with clause 4 of the contract, the Claimant was also entitled to receive the following benefits:

- “$”10,000 signing-on fee for the 2017/2018 season;

- “$”12,000 signing-on fee for the 2018/2019 season, payable before the beginning of the 2018/2019 season;

- “$”25 per month transport allowance;

- “$”20 bonus for each goal scored;

- “$”100 per month as food allowance.

4. According to the Claimant, it was orally agreed that the Respondent would reimburse his flight tickets.

5. On 19 February 2018, the Claimant put the Respondent in default and requested to be paid USD 2,750 within seven days in cash or to his specified bank account, which amount was specified as follows:

a. USD 800 as outstanding salary corresponding to the months of October 2017 until January 2018;

b. USD 500 corresponding to 5 months of food allowance;

c. USD 250 corresponding to 10 months of transport allowance;

d. USD 1,200 corresponding to flight tickets.

6. In the same default notice, the Claimant mentioned that it was agreed that he would receive his salaries in cash, instead of “mobile money and bank transfers”.

7. According to the Claimant, during a meeting with the Respondent on 2 March 2018, he, inter alia, requested his salary, food and transportation allowance for February 2018, totalling USD 1,625, and that he be paid in USD.

8. On 19 March 2018, the Respondent sent a letter to the Claimant entitled “Payment Plan for [the Claimant]”. In this letter, the Respondent made reference to the meeting held on 2 March 2018 and, inter alia, proposed the following payment plan:

a. USD 1,000 “per every home game (…) starting from our first game against Club E”;

b. USD 2,000 after every high profile match;

c. “Salary will be converted (…) into USD from January 2018 as agreed in our meeting”;

d. “Work permit to be sorted out urgently”;

e. “[The Respondent] will also reimburse your airfares of USD 1,200”;

f. “We hope our proposal is favourable and we will be able to register him in time”.

9. On 20 March 2018, the Claimant informed the Respondent in writing that he did not agree with the Respondent’s proposal of 19 March 2018, since it failed to comply with his requests as stipulated in his letter of 19 February 2018 and that “in the meantime the additional amount of USD 13,625 has fallen due”. As a result, the Claimant requested that the total amount of USD 16,375 be paid to him “within the following 7 days”.

10. On 27 March 2018, the Respondent proposed a second “payment plan” to the Claimant, which included the following:

a. That USD 3,000 was deposited “into [the Claimant’s] account”;

b. That USD 7,000 “will be deposited on 27 March 2018 from our sponsor into your mobile money. This amount will however be subjected to taxation”;

c. USD 3,000 to be paid on 3 April 2018;

d. “The balance will be paid from our next home match”.

e. “Work permit to be sorted out urgently”;

f. “We hope our proposal is favourable and we will be able to register him in time”.

11. On that same day, 27 March 2018, the Claimant informed the Respondent in writing that the USD 3,000 the Respondent alleged to have paid was transferred to the wrong bank account. According to the Claimant, he cannot use the bank account the money was transferred to, “since this account does not allow me to withdraw money in USD”. The Claimant further wrote that he “will transfer the money back and kindly ask you to pay (…) in the bank account indicated.”

12. In the same letter, the Claimant disagreed with the Respondent’s plan to pay USD 7,000 to his “mobile money”, and asked that the amount be paid to his regular bank account instead. The Claimant further argued that the Respondent had still not provided him with his work permit, “even though the season has already started”. The Claimant asked that USD 16,375 be paid to him within the next 48 hours.

13. On 5 April 2018, the Claimant informed the Respondent in writing, inter alia, that he had received no payments nor a work permit, and that, as a consequence, he terminated the contract.

14. On 16 April 2018, the Claimant lodged a claim against the Respondent in front of FIFA for breach of contract and requested:

a. USD 18,055 net as outstanding remuneration, plus 5% interest p.a. as from the due dates, specified as follows:

i. USD 250 for the transport allowances from May 2017 to February 2018;

ii. USD 100 for the remaining part of the October 2017 salary;

iii. USD 100 for the food allowance of October 2017;

iv. USD 100 for the remaining part of the November 2017 salary;

v. USD 100 for the food allowance of November 2017;

vi. USD 100 for remaining part of the December 2017 salary;

vii. USD 100 for the food allowance of December 2017;

viii. USD 500 for the remaining part of the January 2018 salary;

ix. USD 100 for the food allowance of January 2018;

x. USD 1,500 for the salary of February 2018;

xi. USD 100 for the food allowance of February 2018;

xii. USD 12,000 for the sign-on fee “due in March 2018”;

xiii. USD 1,500 for the salary of March 2018;

xiv. USD 100 for the food allowance of March 2018;

xv. USD 25 for the transportation allowance of March 2018;

xvi. USD 1,200 for the flight tickets;

xvii. USD 180 for goals scored.

b. USD 14,625 net as compensation for breach of contract plus 5% interest p.a. as from 6 April 2018.

c. USD 2,000 as legal costs;

d. The imposition of sporting sanctions on the Respondent.

15. According to the Claimant, the first match of the season was played on 17 March 2018 and therefore, the signing-on fee of USD 12,000 was due on that day.

16. The Claimant further held that on 31 March 2018 his work permit expired.

17. Moreover, as per the Claimant, the Respondent had failed to register him for the 2018/2019 season prior to the deadline of 31 March 2018.

18. The Claimant further argued that, given the financial situation in Country D, it was essential for him to receive his salary on a bank account that would allow him to withdraw USD. However, the bank account to which the club transferred the USD 3,000 to (cf. number I./10.a above) allegedly does not allow for a withdrawal in USD. Instead, as per the Claimant, the money withdrawn from that account can only be used in Country D and has no value abroad.

19. The Claimant held that, therefore, he transferred the USD 3,000 back to the Respondent.

20. With regard to his request for USD 1,200 for the flight ticket, the Claimant argued that the Respondent confirmed in its letter of 19 March 2018 that this was due to him and he submitted a travel bill for the flight Country D– Country B, valued at USD 1,200.

21. Finally, with regard to his request for USD 180 for goals scored, the Claimant stated that the Respondent failed to pay him the corresponding bonus for nine goals scored. In this regard, the Claimant provided a document demonstrating that until 1 October 2017, he had scored 11 goals.

22. In its reply, the Respondent firstly held that it was never contractually agreed with the Claimant that it should bear the cost of flight tickets.

23. Furthermore, the Respondent stated that the alleged outstanding remuneration as claimed by the Claimant in his letter of 19 February 2018 is “a derivative of a miscalculation by [the Claimant]”, given that his earnings were subject to “Pay As You Earn (tax)” “and any claim based on gross salary before tax is not allowed”.

24. In continuation, the Respondent argued that Country D has a multicurrency system. As per the Respondent, the Claimant “was being paid in currency of Country D (Banknotes of Country D) which arrangement was not at variance with the employment contract”. According to the Respondent, the problems of foreign currency is a national problem for Country D “and the whole populace can hardly withdraw even USD 1”.

25. In this context, the Respondent maintained that the employment contract does not mention that the payment is to be made in USD. As per the Respondent, “any payments in such currency was (…) based on availability through other avenues as pursued by [the Respondent] and (…) this was not contractual”.

26. The Respondent argued that it paid the Claimant his salary for January, February and March 2018, but that he returned the money because he wanted to be paid in USD. According to the Respondent, the amount returned by the Claimant amounted to “$” 8,858.34 and that “these returned funds in their local currency form are not disputed by Respondent”. Therefore, as per the Respondent, this is a dispute over the mode of payment, and not over non-payment, as the Claimant claimed.

27. Regarding further alleged outstanding payments, the Respondent admitted that it paid the Claimant “3 to 4 days (after) the salary due date, (but) a delay of less than a week can never be constituted as a gross breach of (…) contract”.

28. In addition, the Respondent submitted the following four so-called “Club C Acknowledgement Of Receipt” documents, signed by the Claimant:

a. USD 100, dated 28 August 2017, as “food allowance”;

b. USD 700, dated 14 September 2017, as “sign-on (USD 500) and food allowance (USD 200)”;

c. USD 140, dated 28 September 2017, as “seven goals allowance”;

d. USD 1,000, dated 5 October 2017, as “outstanding salaries”.

29. Furthermore, the Respondent argued that “for the period February to April 2018”, it paid the Claimant an amount of USD 13,732.10, which, as per the Respondent “puts to finality the assertion that [the Claimant] was not being paid”. In this regard, the Respondent submitted an in-house excel table showing unspecified financial transactions allegedly made to the benefit of the Claimant entitled “Statement from the Sponsor” and dated 26 July 2018.

30. The Respondent claimed that its sponsor remits salary payments to individual players through the sponsor’s mobile money transfer system. The Respondent added that it had “no control whatsoever” on this model of payment and that the Claimant’s request to propose his own desired manner of payment fell outside the sponsorship agreement between the Respondent and its Sponsor, “and therefore it could not be performed”.

31. As regards the Claimant’s work permit, the Respondent maintained that its willingness to extend the Claimant’s working permit is evident from its letter dated 27 March 2017, but that this issue was complicated by the Claimant since, as per the Respondent, a permit application “has to satisfy a number of requirements and key amongst them is an agreed employment contract which document had now become a contentious issue because of the issues raised [above]”.

32. According to the Respondent, the 2018/2019 signing-on fee could not be paid “due to a myriad of alleged outstanding payments albeit lacking verification and authenticity”. In this sense, the Respondent argued that a signing-on fee is “premised on deemed performance value of [the Claimant] (…) during the agreed contractual period”.

33. Furthermore, according to the Respondent, on 6 April 2018, the Claimant asked the Respondent to issue his clearance letter for his to return to Country B. As per the Respondent, the Claimant’s request for a clearance letter is incompatible with his request for the signing-on fee of USD 12,000.

34. Given all of the above, the Respondent concluded that the Claimant had no just cause to terminate the contract and that the claim should be dismissed.

35. With regards to the Respondent’s position that the employment contract does not mention that the payment of the salary is to be made in USD, the Claimant argued that the “USD sign” is clearly indicated in the contract.

36. Furthermore, the Claimant referred to the payment receipt enclosed in the Respondent’s response (cf. number I./28. above) and held that these payments were done in USD.

37. Regarding the Respondent’s argument that the Claimant’s earnings were subject to tax, the Claimant stated that the employment contract does not indicate whether payments were to be made gross or net. According to the Claimant, in such cases it is established that amounts are net. In any case, as per the Claimant, the Respondent had not provided any documentary evidence that it had indeed paid taxes to the authorities in Country D.

38. With regard to the alleged non-payment of the signing-on fee of USD 12,000, the Claimant stated this payment was clearly identified in the contract. Moreover, according to the Claimant, the Respondent’s assertion that the signing-on fee is based on “performance value” is unfounded.

39. As regards his request for the clearance letter of 6 April 2018, the Claimant stressed that such request was made one day after his termination of the contract and therefore perfectly reasonable.

40. The Claimant further held that the documents presented by the Respondent (cf. number I./28. above) are for the most part irrelevant to the core of this matter, since they do not relate to the payments requested by him.

41. With regard to the documents presented by the Respondent that are related to alleged financial USD transactions from the alleged sponsor of the Respondent to the Claimant, the Claimant held that he never provided this bank information to the Respondent and that he is considering his legal options in relation to the Respondent’s behaviour.

42. The Claimant further argued that the payment through Banknotes of Country D and through the “Sponsors mobile money transfer system” are two ways of payment that had neither been included in the contract, nor had been explicitly agreed upon by the Claimant. The Claimant added that he had a binding employment contract with the Respondent, and not with the Respondent’s sponsor. According to the Claimant, an agreement between the Respondent and its sponsor is irrelevant to the matter at hand. Therefore, as per the Claimant, he had all rights to request payment via bank transfer on his bank account.

43. As to the flight tickets, the Claimant referred to the Respondent’s letter of 19 March 2018 and argued that there is a clear commitment of the Respondent to pay this fee. Moreover, the Claimant stated that the Respondent paid various tickets for him to go on trial in Country F, “which is another clear indication that the [Respondent] would pay the [Claimant] his air fares”.

44. With regard to the work permit, the Claimant held that the Respondent never notified him that it needed further documentation from him. In this context, the Claimant referred to the Respondent’s letter of 27 March 2018, which stipulates that the Respondent would “sort out the work permit urgently”, without requesting any further documentation.

45. As per the Claimant, the Respondent’s argument that the employment contract had become “a contentious issue because of the issues raised” cannot stand, because nothing prevented the Respondent from using the employment contract to obtain the work permit.

46. In its duplica, the Respondent firstly held that the “currency of Country D has the same purchasing power with the USD. Therefor the insignia $ and USD is used interchangeably. (If not), how come [the Claimant] worked the whole of season 2017 being paid in the currency of Country D (?)”.

47. The Respondent further stated that any salary above USD 300 per month is taxable and attached a number of in-house salary payment lists of the team in support of this statement.

48. According to the Respondent, the Claimant admitted that the 2017 payments are not in dispute. Therefore, as per the Respondent, there is no claim as to the 2017 season.

49. Furthermore, the Respondent reiterated that the contract does not expressly specify how the payments are to be done. According to the Respondent, the only issue in dispute is determining whether or not the relevant payments were made to the Claimant. The Respondent deemed that it paid all his dues to the Claimant and that therefore there is no dispute in that regard.

50. With regard to the flight tickets, the Respondent disagreed with the Claimant that, simply because it paid air fares for the Claimant to go on trial, flight tickets were a contractual obligation.

51. Regarding the work permit, the Respondent reiterated that once an employment contract becomes an issue in dispute, its validity, force and effect are rendered incapable of performance.

52. The Claimant informed FIFA that, on 25 July 2018, he signed an employment contract with the club of Country G, Club H, valid as from 1 July 2018 until 30 June 2020. According to this employment contract, the Claimant is to receive within the relevant period of time a signing-on fee of 150,000 in the currency of Country G by 1 August 2018 and a net salary of 17,000 in the currency of Country G per month, payable on the 30th day of each month.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 16 April 2018. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (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 par. 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 this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 8 November 2018 by means of which the parties were informed of the composition of the Chamber, the member, Mr. J, and the member, Mr. L, refrained from participating in the deliberations in the case at hand, due to the fact that the member, Mr. J, refrained from participating due to certain personal circumstances and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member, Mr. L, refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations.

4. 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 16 April 2018, the 2018 edition of the 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 and arguments as well as the documentation on file. 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. In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

6. In this respect, the Chamber recalled that the Claimant and the Respondent signed an employment contract which was valid as from 20 March 2017 until 31 December 2018. The Chamber acknowledged that, in accordance with the employment contract, the Respondent was obliged to pay to the Claimant, inter alia, a monthly salary of “$” 1,500 and a signing-on fee of “$” 12,000 for the 2018/2019 season as well as monthly transport & food allowances and bonuses for goals scored. As regards the said bonuses, the Chamber took into account that the employment contract, as opposed to the salary, signing-on fee and the monthly allowances, does not specify the payment due date of the bonuses.

7. The DRC further took into consideration that, after having put the Respondent in default, the Claimant unilaterally terminated the contract on 5 April 2018, invoking just cause for allegedly not having been paid his contractual receivables, nor having received a valid work permit.

8. In continuation, the DRC recalled that the Claimant requested to be awarded inter alia the amount of USD 18,055 as alleged outstanding remuneration as well as USD 14,625 as compensation for breach of contract.

9. The members of the DRC noted that the Respondent, for its part, dismissed the claim and held that the Claimant terminated the contract without just cause. In its defence, the Respondent held, inter alia, that part of the remuneration claimed by the Claimant as outstanding was duly paid to him, that the Claimant had returned a payment to the Respondent that its sponsor was responsible for payment of the Claimant’s remuneration, and that taxes were to be deducted from the Claimant’s remuneration. With respect to the Claimant’s work permit, the Respondent held that since the employment contract was the object of a disagreement between the parties, it no longer satisfied the requirements of the work permit application.

10. In light of the above, the Chamber established that, considering the diverging position of the parties, the primary issue at stake is determining as to whether the Claimant had a just cause to terminate the contract with the Respondent on 5 April 2018 and to determine the consequences thereof. In this respect, the Chamber deemed it essential to make a brief recollection of the facts as well as the parties’ main arguments and the documentation on file.

11. Having said that, the DRC firstly noted that, on 19 February 2018, the Claimant put the Respondent in default of payment of partial salaries as from October 2017 to January 2018, five monthly food allowances and 10 monthly transport allowances, as well as USD 1,200 corresponding to flight tickets. Moreover, the Chamber recalled that the parties held a meeting on 2 March 2018 and that, on 19 March 2018, the Respondent proposed a payment plan, which included, inter alia, the reimbursement of USD 1,200 for flight tickets and that the Claimant’s work permit be sorted out. Furthermore, the DRC highlighted that the Claimant rejected this payment plan offered by the Respondent.

12. In continuation, the Chamber noted that with its correspondence of 27 March 2018, the Respondent made a second offer, which does not appear to have been accepted by the Claimant, who, in reply on 27 March 2018, requested the Respondent to pay him USD 16,375 within the next 48 hours and to provide him with a new work permit.

13. The DRC further took into account that according to the copy of the work permit submitted by the Claimant, the Claimant’s work permit expired on 31 March 2018.

14. In this regard, the members of the DRC agreed that it remained undisputed that the Respondent had not renewed the Claimant’s work permit, even though it had promised to do so on two occasions (i.e. on 19 March 2018 and on 27 March 2018). Consequently, the Chamber concluded that as of 1 April 2018 the Claimant no longer had a valid work permit and that he was consequently prevented from rendering his services to the Respondent.

15. In this respect, the DRC placed particular emphasis on the Respondent’s statement that it had not extended the Claimant’s work permit, because the employment contract had “become a contentious issue because of the issues raised” by the Claimant and that therefore it no longer fulfilled the requirements of the permit application. The members of the Chamber could not follow such argument and deemed that the parties’ apparent disagreement on outstanding payments prior to the expiry of the Claimant’s work permit could not be validly invoked by the Respondent as a reason for it not to arrange a new work permit for the Claimant. What is more, even if such argument could be considered valid, the Chamber highlighted that the Respondent had not presented documentary evidence corroborating such allegation.

16. Secondly, the Chamber recalled that, according the Claimant, the Respondent had failed to fulfil its financial obligations under the relevant employment contract. In particular, the Chamber recalled that, as per the Claimant, USD 18,055 remained outstanding on the day of contract termination, including, inter alia, transport allowances as from May 2017 until March 2018, food allowances as from October 2017 until March 2018, partial salaries as from October 2017 until January 2018, full salaries of February and March 2018, and the signing-on fee payable before the beginning of the 2018-2019 season. Similarly, the DRC recalled the various arguments put forward by the Respondent in its defence.

17. In this context, the Chamber brought to mind that the Respondent argued that the Claimant’s claim was based on a gross salary and that taxes were to be deducted from the Claimant’s remuneration. The DRC noted that the Respondent further argued that the contract did not mention that the payments had to be made in USD, explaining in this respect that Country D has a multicurrency system. Moreover, the DRC evoked that, according to the Respondent, its sponsor was responsible for the payment of the Claimant’s remuneration and that it had no control on the model of payment used by its sponsor.

18. In light of the above, the Chamber firstly analysed as to whether taxes were to be deducted from the Claimant’s remuneration, as claimed by the Respondent. In this regard, the DRC noted that the contract did not contain any clause stipulating whether payments are net nor gross or any clause regarding payment or deduction of taxes. Furthermore, the Chamber took into account that the Respondent had not provided credible documentary evidence demonstrating that taxes were to be deducted from the Claimant’s remuneration as set out in the employment contract. Consequently, the DRC decided that no amount is to be deducted from the Claimant’s remuneration as stipulated clauses 3 and 4 of the contract for tax reasons.

19. In continuation, the DRC scrutinized in which currency payments were to be made by the Respondent to the Claimant. In this context, the DRC recalled that according to the employment contract, payments to the Claimant were to be made in “$” and noted that such sign is the sole currency denomination or reference in the contract. Furthermore, the members of the Chamber took into account the aforementioned “Club C Acknowledgment Of Receipt” documents submitted by the Respondent, which show that the Claimant received payments in USD from the Respondent. Similarly, the DRC noted that in the above-mentioned “payment plans” the Respondent referred to payments in USD. Taking into account the wording of the contract as well as previous payments made by the Respondent to the Claimant, the Chamber decided to reject the Respondent’s argument and established that the Claimant was entitled to receive his salary in USD.

20. In addition, with regard to the Respondent’s allegation that its sponsor was responsible for the payment of the Claimant’s remuneration, the Chamber recalled that the employment contract did not provide for the possibility for a sponsor to pay the Claimant’s salary. In any case, the members of the DRC deemed that the Respondent’s argument that its sponsor was responsible for the payment of the Claimant’s remuneration cannot be considered valid to justify any outstanding payment.

21. Having said that, the Chamber focussed its attention on establishing which contractual remuneration had remained outstanding, if any, when the Claimant terminated the employment contract on 5 April 2018. In this respect, the Chamber took into account that according to the TMS, the Country D 2018-2019 season started on 3 March 2018 and, thus, concluded that the USD 12,000 signing-on fee had fallen due prior to the termination of the contract by the Claimant.

22. However, the Chamber took into account that it was undisputed that the amount of USD 3,000 had been paid by the Respondent to the Claimant on or about 27 March 2018 and that such amount was returned by the Claimant to the Respondent alleging that it was paid to the wrong account. In this sense, the DRC underlined that there is no contractual clause regarding the method of payment of the Claimant’s remuneration, in particular regarding the relevant bank account.

23. In continuation, the members of the Chamber took into account that in support of its position that it paid the Claimant USD 13,732.10 for the period of February to April 2018, the Respondent only submitted an in-house excel table, dated 26 July 2018, to which it referred to as “statement from the Sponsor”, showing unspecified financial transactions allegedly made to the Claimant. In this regard, the DRC referred to the principle of the burden of proof stipulated in art. 12 par. 3 of the Procedural Rules, and stressed that the Respondent had not submitted convincing documentary evidence in support of such allegation.

24. Subsequently, the Chamber reverted to the “Club C Acknowledgment Of Receipt” documents submitted by the Respondent and established that the payments included therein are not related to the signing-on fee, salaries and food allowance claimed by the Claimant.

25. As regards the claimed signing-on fee of USD 12,000 for the 2018/2019 season, the DRC recalled that the Respondent purposely did not pay this fee “due to a myriad of alleged outstanding payments albeit lacking verification and authenticity”. The Chamber agreed that such argument brought forward by the Respondent does not justify the non-payment of the signing-on fee to the Claimant, which fell due well before the termination of the contract by the Claimant.

26. Having established all of the above, bearing in mind the Claimant’s claim and that the Respondent had made a payment of USD 3,000 to the Claimant on or about 27 March 2018 (cf. number II./22. above), the DRC concluded that the total amount of USD 13,675, consisting of the signing-on fee of USD 12,000, part of the entitlements due until February 2018, and the Claimant’s salary and allowances for March 2018, had fallen due and remained unpaid when the Claimant terminated the contract.

27. Finally, the DRC recalled that, on 19 February 2018 and 20 March 2018, the Claimant had put the Respondent in default of payment prior to proceeding with the termination of the employment contract.

28. Taking into account all of the above considerations, in particular the facts that the Respondent failed to provide the Claimant with a valid working permit following its expiry on 31 March 2018 and that a considerable amount of contractual entitlements was still outstanding when the Claimant terminated the contract, the DRC determined that the Claimant had just cause to terminate the employment contract on 5 April 2018 in accordance with this Chamber’s constant and well-established jurisprudence.

29. That said, the Chamber concluded that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant and should therefore bear the consequences of its unjustified breach of the employment contract.

30. In continuation, prior to entering into the issue of the consequences of the early termination of the employment contract with just cause by the Claimant, the Chamber firstly proceeded to determine the amount of outstanding remuneration, if any, still due to the Claimant by the Respondent to this day.

31. In this light, the Chamber firstly referred to its previous deliberations (cf. number II./22 above) and highlighted that, whereas the payment of USD 3,000 by the Respondent to the Claimant was taken into consideration when establishing the remuneration outstanding at the date of termination of the contract, in light of the fact that this amount was returned by the Claimant to the Respondent, the USD 3,000 must be included in the amount of remuneration still payable to the Claimant by the Respondent.

32. In continuation, the Chamber recalled that the Claimant requested USD 180 for goals scored, while providing documentation relating to 11 goals scored until 1 October 2017. In this context, the DRC evoked that the Respondent provided evidence of payment in the amount of USD 140, dated 28 September 2017, for seven goals scored (cf. number I./28.c above). Thus, the Chamber concluded that a bonus for four goals scored in the total amount of USD 80 has remained outstanding and shall be paid to the Claimant.

33. In addition, with regard to the Claimant’s request for USD 1,200 corresponding to flight tickets, the DRC firstly established that there was no contractual obligation for the Respondent to reimburse the Claimant’s flight tickets. On the other hand, the Chamber acknowledged that as per the first “Payment Plan” sent by the Respondent on 19 March 2018, the Respondent offered to reimburse the Claimant’s “airfares of USD 1,200” (cf. number I./8.e above). Having said this, the Chamber similarly recalled that the Claimant did not accept the Respondent’s first payment plan, while the Respondent’s second payment plan of 27 March 2018 did not include the offer to reimburse the Claimant’s flight tickets. Given the above, the DRC decided to reject the Claimant’s request for USD 1,200 corresponding to flight tickets due to the lack of a legal basis.

34. On account of the aforementioned considerations, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of USD 16,755.

35. In addition, taking into consideration the Claimant’s request, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of USD 16,755 as of the day following the day on which each of the respective instalments fell due. In this context, the Chamber took into account that according to the Claimant the signing-on fee of USD 12,000 for the 2018/2019 season fell due on 17 March 2018 (cf. number I./15. above) and recalled that no payment due date for bonuses was included in the employment contract.

36. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract payable by the Respondent to the Claimant in the case at stake. In doing so, the members of the Chamber first recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the 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.

37. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

38. As a consequence, 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 DRC 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. In this regard, the DRC emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter.

39. In order to estimate the amount of compensation due to the Claimant in the present case, the Chamber first turned its attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract(s), which criterion was considered to be essential. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

40. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 5 April 2018, until 31 December 2018, and concluded that the Claimant would have received USD 14,625 in total as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of USD 14,625 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

41. 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 able 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 termination of contract with just cause in connection with the player’s general obligation to mitigate his damages.

42. The Chamber recalled that, on 25 July 2018, the Claimant signed an employment contract with the club of Country G, Club H, valid as from 1 July 2018 until 31 June 2020. According to this employment contract, the Claimant was to receive within the relevant period of time a signing-on fee of 150,000 in the currency of Country G by 1 August 2018 and a net salary of 17,000 in the currency of Country G per month payable on the 30th day of each month.

43. The Chamber thus established that between 5 April 2018 and 30 June 2018, during which the Claimant would have been entitled to receive contractual payments in the amount of USD 4,875 from the Respondent, the Claimant was unemployed. Consequently, the DRC determined that for the period between 5 April 2018 and 30 June 2018, the Claimant is entitled to compensation in the amount of USD 4,875.

44. In continuation, the DRC established that between 1 July 2018 and 31 December 2018, the Claimant was able to earn an income of approx. USD 23,053 at his new club.

45. Consequently, the Dispute Resolution Chamber decided that, even though the Respondent is considered liable for the breach of the relevant employment contract, the Claimant did not suffer any financial loss from the violation of the contractual obligations by the Respondent for the period as from 1 July 2018 to 31 December 2018. Therefore, the Chamber decided that compensation for breach of contract in the matter should only be awarded to the Claimant as from 5 April 2018 until 30 June 2018. Consequently, the Dispute Resolution Chamber determined that the total amount of compensation due to the Claimant is USD 4,875.

46. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant’s general obligation to mitigate his damage, the Chamber decided that the Respondent must pay the amount of USD 4,875 to the Claimant as compensation for breach of contract.

47. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 16 April 2018, until the date of effective payment.

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

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 16,755 plus interest at the rate of 5% p.a. until the date of effective payment as follows:

a. 5 % p.a. on the amount of USD 25 as from 31 May 2017;

b. 5 % p.a. on the amount of USD 25 as from 1 July 2017;

c. 5 % p.a. on the amount of USD 25 as from 31 July 2017;

d. 5 % p.a. on the amount of USD 25 as from 31 August 2017;

e. 5 % p.a. on the amount of USD 25 as from 1 October 2017;

f. 5% p.a. on the amount of USD 225 as from 31 October 2017;

g. 5% p.a. on the amount of USD 225 as from 1 December 2017;

h. 5% p.a. on the amount of USD 225 as from 31 December 2017;

i. 5% p.a. on the amount of USD 625 as from 31 January 2018;

j. 5% p.a. on the amount of USD 1,625 as from 1 March 2018;

k. 5% p.a. on the amount of USD 12,000 as from 18 March 2018;

l. 5% p.a. on the amount of USD 1,625 as from 31 March 2018;

m. 5% p.a. on the amount of USD 80 as from 16 April 2018.

3. 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 USD 4,875 plus 5% interest p.a. as from 16 April 2018 until the date of effective payment.

4. In the event that the amounts plus interest due to the Claimant in accordance with the above-mentioned points 2. and 3. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is 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

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal Officer

Encl. CAS directives