F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 31 October 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 31 October 2019,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (the Netherlands), member

Daan de Jong (the Netherlands), member

on the claim presented by the player,

Rodion Sergey Dyachenko, USA

as Claimant

against the club,

Can Tho FC, Vietnam

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. The American player, Rodion Sergey Dyachenko (hereinafter: the player or the Claimant) and the Vietnamese club, Can Tho FC (hereinafter: the club or the Respondent) signed an employment contract (hereinafter: the contract) on 6 March 2018 valid as of 6 March 2018 until 4 May 2018.

2. According to the contract referenced under nr. 15/HDLD-CLBBD, the club undertook to pay the player USD 10,000, payable “on 15th -30th every month”.

3. Art. 3 of the contract reads, inter alia, as follows:

“3.1 Terminating contract without compensation:

3.1.1. To club:

[…]

c) the player does not meet the professional standards according to requirement of Club.”

4. Art. 6 of the contract, with the title “Dispute settlement”, reads as follows: “Any disagreement and/or disputes arising and/or in connected to this contract shall be, firstly, settle through negotiation and conciliation. In cases where the two parties herein cannot reach and agreement after 15 days negotiation. The amendment and supplement of the contract can be made in the form of: amendment of this contract, supplement by signing additional contract or signing new contract. If no agreement can be reached to amend, supplement or sign new contract, the contract shall be continued or terminated in accordance with the provisions of the law, under the terms of the contract.”

5. According to the player, on 6 March 2018 as well, the parties allegedly concluded a second agreement, valid as of 6 March 2018 until “the end of the season 2018”. According to the player, it is identical as the first agreement apart from the length of the term.

6. On 20 March 2018, the club terminated the contractual relationship with the player in a meeting. The minutes of said meeting, signed by the club and not by the player, contain essentially the following points:

- The player proposed that the club would need to pay his salary “until to October” in order to agree to a pre-mature termination;

- The club wanted to terminate “contract No. 27/HDLD-CLBBD”, dated 6 March 2018, while paying the player his salary as of 6 March 2018 until 20 March 2018, without “extras”. Said option is presented as “conclusion” of the minutes.

7. On 26 March 2018, the club offered the player to cover the costs of his return flight ticket, allegedly refused by the player.

8. On 10 and 18 May 2018, the player requested the club to provide him with a copy of the second contract, which’s existence has been denied by the club on 25 May 2018.

9. On 1 October 2018, the player lodged a claim for breach of contract and requested the payment of the following amounts:

i. USD 70,000 as compensation for the whole duration of the contract (From 06/03/2018 to 06/10/2018);

ii. USD 60,000 as additional compensation (“equivalent to six month’s salaries”);

10. Moreover, the player requested 5% interest p.a. over the claimed amount as compensation for breach of contract as of 21 March 2018.

11. The player further requested the imposition of sporting sanctions against the club, as well as its own legal costs to be reimbursed by the club, “of a sum no less than USD 10,000”.

12. In his claim, the player explained that according to Vietnamese regulations, as to employment contracts between Vietnamese employers and foreigners, as well as in order to facilitate work permit application, the parties signed two employment contracts: one not exceeding three months to obtain a fast-track business visa and one executed for a longer term which represents the true intention of the parties.

13. In this respect, the player explained that by providing various documentation as to his previous Vietnamese club, witness statements from other professional players corroborating this regular employment practice as well as general information about this employment practice in Vietnam, he duly demonstrated the existence of the second contract he is alluding to.

14. In addition, the player referred to the minutes of the meeting leading to the termination of the contract who clearly referred to the contract reference number of the alleged second contract, instead of the first.

15. Moreover, in any event, the player referred to the principle of art. 18.2 of the FIFA RSTP in order to justify the requested adjustment of the first contract as to its conclusion, i.e. until 6 October 2018.

16. As a consequence, the player held that by applying the above-mentioned provision to the present contract, “the minimum contractual period upon which the [parties] were entitled to agree was 6 March 2018 to 6 October 2018 (…)” which “ (…) is what was concluded in the second contract”.

17. Furthermore, the player underlined that no just cause could justify the termination as he had never been warned or put on notice that he failed to fulfil his contractual obligations, or that he had committed any gross violation of said obligations and, finally, that he had not been given a reason for the early termination.

18. Moreover, the player sustained that the termination clause in the contract is clearly to be considered as “potestative” and should therefore be disregarded.

19. Finally, the player reminded that his various actions made in order to solve the present matter remained unfortunately unsuccessful.

20. In its reply to the claim, the club firstly challenged FIFA’s competence to adjudicate the present as to the substance.

21. In this respect, the club alleged that the parties agreed to bring any dispute arising from the present to the “Can Tho Commercial Arbitration Center”. In support of his allegations, the club provided a copy of a “contract No. 27/HDLD-CLBBD”, valid as from 6 March 2018 until 4 May 2018 and signed by both parties.

22. In addition, the club deemed that Vietnamese law applies to foreigners working in Vietnam.

23. As to the substance, the club affirmed that it “only signed only one [contract] with term from March 6, 2018 to May 4, 2018”. In this respect, the club relied on a letter sent by the Vietnam Football Federation allegedly confirming said position.

24. Furthermore, the club rejected the player’s request entirely basing its position on the fact that that the parties mutually agreed to sign the contract’s content, i.e. as well as its clear termination clause.

25. In this respect, the club explained that after having been registered to play in two matches, “(…) the coach commented that the player did not meet the requirements and suggested [the club] to liquidate the [contract] (…)”, and, as a consequence, “(…) [the club] invited [the player] to meet directly on March 20, 2018 to terminate [the contract], but [the player] did not cooperate and did not sign the minutes of meetings (…)”. In support of its allegations, the club provided a copy of two reports signed by the coach for the attention of the club’s board with as subject: “Report on the assessment of athlete expertise” and “Proposal on the liquidation of the athlete’s contract”.

26. Finally, as to the employment practice in Vietnam as described by the player, the club provided a letter from the Vietnamese Football Federation which read as follows : “As regulated in (…) labour law and regulations [of the Federation], there is no rule stated as follows: Employer/Club and Employee/Footballer must sign 02 labour contracts at the same time but having different durations”.

27. In his replica, the player insisted on FIFA’s competence to deal with the matter at hand. In this respect, the player explained that the contract to which the club refers does not contain any arbitration clause.

28. Moreover, the player also rejected the application of Vietnamese law to the present referring to the Swiss Obligation Code, as well as the FIFA Regulations.

29. As to the substance, the player sustained that the document submitted by the club in its reply had been forged as the player denied having ever signed a contract “with the reference nr. 27/HDLD-CLBBD in the form provided by [the club]”.

30. Furthermore, the player underlined that the above-mentioned contract was literally identical in form as the contract he duly signed, save but for the reference number, and, as a consequence of the alluded forgery of said document, his signature.

31. Moreover, the player underlined that the evidence based on which the club justifies the termination of the contract was not part of the Minutes, and that, anyway, “lack of performance” cannot be considered as a just cause for the club to terminate the contract.

32. Finally, the player rejected the other arguments of the club entirely and reiterated its comments as presented in his initial claim.

33. Despite having been invited to provide FIFA with the original version of the document submitted in its reply to the claim, the club did not submit the requested document nor its final comments.

34. Finally, upon FIFA’s request, the player explained that he remained unemployed as of 20 March 2018 until 6 October 2018.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 1 October 2018. Consequently, the DRC concluded that the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2019), the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an American player and a Vietnamese club.

3. The Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of article 6 of the contract, highlighting that the parties have opted for the “Can Tho Commercial Arbitration Centre” to be the competent body for any dispute in relation to the employment contract.

4. In this regard, the Chamber noted that the player has contested the existence of an arbitration clause in any of the contracts and insisted that FIFA has jurisdiction to deal with the present matter.

5. While analysing whether it was competent to hear the present matter, the Chamber deemed it vital to outline that one of the basic condition that needs to be met in order to establish that another organ than the DRC is competence to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract.

6. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear jurisdiction clause.

7. In this respect, the Chamber deemed it appropriate to analyse the content of clause 6 of the contract, based on which the Respondent contests FIFA’s competence. The aforementioned clause 6 states the following: “Any disagreement and/or disputes arising and/or in connected to this contract shall be, firstly, settle through negotiation and conciliation. In cases where the two parties herein cannot reach and agreement after 15 days negotiation. The amendment and supplement of the contract can be made in the form of: amendment of this contract, supplement by signing additional contract or signing new contract. If no agreement can be reached to amend, supplement or sign new contract, the contract shall be continued or terminated in accordance with the provisions of the law, under the terms of the contract.”

8. Having examined the relevant provision, the Chamber came to the unanimous conclusion that article 6 does not constitute a jurisdiction clause in favour of the Dispute Resolution Chamber of the “Can Tho Commercial Arbitration Centre”, since it does not refer to any dispute resolution body at all.

9. On account of all the above, the Chamber did not consider article 6 to be a clear and specific jurisdiction clause and as such, it established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

10. Subsequently, 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 Player (editions June 2018 and June 2019), and considering that the present claim was lodged on 1 October 2018, the June 2018 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

11. 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.

12. Having said this, the Chamber proceeded with an analysis of the circumstances surroundings the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

13. First of all, the DRC acknowledged that, on 6 March 2018, the Claimant and the Respondent had concluded an employment contract valid as of 6 March 2018 until 4 May 2018.

14. Furthermore, the DRC noted that the parties are disputing the alleged existence of a second contract, valid as from 6 March 2018 until the end of the relevant sporting season. According to the Claimant, the said contract was signed in addition to the first employment contract and is identical to the latter, apart from its length. The Respondent denied such allegations. The Chamber acknowledged the argumentation of the Claimant referring to art. 18 par. 2 of the Regulations, which establishes that the minimum length of a contract shall be from its effective date until the end of the season.

15. In this respect, the Chamber, recalling the above-mentioned art. 12 par. 3 of the Procedural Rules, concluded, that according to the documentation presented by the Claimant, there is no conclusive evidence to prove without a doubt the existence of the second contract and under which terms this contract would have been concluded. With regard to the Claimant’s argument that art. 18 par. 2 of the Regulations provide for a minimum length of a contract until the end of the season, the Chamber recalled that the same article also establishes, that a contract of any other length is permitted if consistent with national laws. The Chamber, following the Claimant’s own allegations that the term of the employment contract is consistent with Vietnamese law, considered the validity of the contract as initially established, i.e. as from 6 March 2018 until 4 May 2018.

16. In continuation, the DRC analysed the third version of the employment contract provided by the Respondent. The Chamber noted that the said contract was signed between the parties and its validity was established as from 6 March 2018 until 4 May 2018. Furthermore, the Chamber acknowledged the Claimant’s argument that this contract had been forged as to its reference number as well as to the Claimant’s signature.

17. In this context, the members of the Chamber deemed it important to firstly recall that, according to the DRC’s well-established jurisprudence, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones concerning falsified signature of documents, and that such affairs fall into the jurisdiction of the competent national criminal authority.

18. In respect of the above, the members of the Chamber, nevertheless, pointed out that all the documentation remitted would be considered with free discretion. Nonetheless, since the original specimen of the document allegedly forged has not been provided by the Respondent, the Chamber decided to disregard the third version of the employment contract, in accordance with its well-established jurisprudence.

19. In view of the above, the Chamber decided to consider only the first employment contract, valid as from 6 March 2018 until 4 May 2018, as the legal document at the basis of the claim.

20. The Chamber further observed that the Claimant lodged a claim before FIFA, asserting that the Respondent had terminated the employment contract without just cause on 20 March 2018.

21. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

22. The members of the Chamber furthermore noted that the Respondent deemed that it applied the termination clause contained in art. 3.1.1, which establishes that the club can terminate the contract if “the player does not meet the professional standards according to the requirements of the club”. The Chamber acknowledged that it had to examine whether the reason put forward by the Respondent could justify the termination of the contract in the present matter.

23. In this regard, the DRC considered relevant to recall its longstanding jurisprudence, in accordance with which the poor performance of the player does not form a valid reason to justify the termination of the employment contract. Moreover, the Chamber then proceeded to analyse the termination clause established in article 3 of the employment contract, which foresees that the club can terminate the contract without any compensation. In this respect, the Chamber held that it could not consider the application of said clause as it clearly provides for a unilateral termination right to the sole benefit of the Respondent with a clearly unilateral and potestative nature.

24. On account of the above, the Chamber decided that the Respondent had no just cause to unilaterally terminate the employment relationship with the Claimant on 20 March 2018 and, consequently, must bear the financial and/or sporting consequences of the early termination, in addition to any outstanding payments on the basis of the relevant employment contract.

25. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the Respondent is liable to pay to the player the remuneration that was outstanding at the time of the termination, i.e. the amount of USD 3,710 as a consequence of the termination without just cause on 20 March 2020.

26. Furthermore, considering the player’s claim for interest and also taking into account the Chamber’s longstanding jurisprudence, the Chamber ruled that the club must pay 5% interest p.a. on the amount of USD 3,710 as from 16 March 2018 until the date of effective payment.

27. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant would, in principle, be entitled to receive from the Respondent an amount of money as compensation for breach of contract.

28. Subsequently, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly 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.

29. In application of the relevant provision, the Chamber held that it first 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 referred to its previous conclusion, that article 3 of the employment contract is not valid – as it stipulates that the contract can be terminated by the club without the payment of any compensation to the player in case of insufficient performance – and therefore cannot be taken into consideration at the basis of the matter at stake.

30. 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.

31. 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 as from its date of termination without just cause by the Respondent, i.e. 20 March 2018 and concluded that the Claimant would have received in total amount of UDS 16,290, corresponding to the period as from 21 March 2018 until 4 May 2018. Consequently, the Chamber concluded that the amount of UDS 16,290 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

32. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the Claimant’s general obligation to mitigate his damages. The Chamber noted that the Claimant was not able to mitigate his damages, as he did not sign a new employment contract for the relevant period of time.

33. In addition, taking into account the Claimant’s request and the DRC’s well-established jurisprudence, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD 16,290 as of the date on which the claim was lodged, i.e. 1 October 2018, until the date of effective payment.

34. Furthermore, taking into account the consideration under number II./10. above, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

35. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the club. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods.

36. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the club in accordance with art. 24bis par. 2 and 4 of the Regulations.

37. Finally, the Chamber recalled that the above-mentioned sanction will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

38. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the Claimant’s claim is admissible and partially accepted.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Rodion Sergey Dyachenko, is partially accepted.

2. The Respondent, Can Tho FC, has to pay to the Claimant outstanding remuneration in the amount of USD 3,710, plus interest at the rate of 5% p.a. until the date of effective payment as from 16 March 2018.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of USD 16,290, plus interest at the rate of 5% p.a. until the date of effective payment as from 1 October 2018.

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

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amounts plus interest, in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due plus interest in accordance with points 2. and 3. above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amounts plus interest are paid.

9. In the event that the aforementioned sums plus interest are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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.

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