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 27 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 27 February 2020,

in the following composition:

Clifford Hendel (USA), Chairman

Roy Vermeer (The Netherlands), member

Stefano La Porta (Italy), member

on the claim presented by the player,

Player A, Country C,

as Claimant / Counter-Respondent I

against the club,

Club B, Country D,

as Respondent / Counter-Claimant

with the club

Club E, Country C

as Counter-Respondent II

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On an unspecified date, allegedly 14 August 2018, the Player of Country C, Player A (hereinafter: the Claimant/Counter-Respondent I or the player), and the club of country D (hereinafter: the Respondent/Counter-Claimant or the club) concluded an employment contract (hereinafter: the contract), valid “for 3 seasons from beginning of season 2018-2021 until the full sport season”.

2. Pursuant to the contract, the player was entitled to a remuneration of EUR 450,000 for each season, as follows:

a. 45% respectively on 11 August 2018, 18 July 2019, and 18 July 2020;

b. 10% respectively on 27 October 2018, 2019, and 2020;

c. 15% respectively on 10 January 2019, 2020, and 2021;

d. 10% respectively on 10 March 2019, 2020, and 2021;

e. 20% respectively on 10 May 2019, 2020, and 2021.

3. On 11 November 2018, the player left the country D and flew to Country C.

4. On 16 November 2018, the player informed the club that his doctor had prescribed him a month break from work to recover from emotional exhaustion.

5. On 17 November 2018, the club replied that it was expecting the player to return to its premises within 2 days in order not to impose a sanction on him corresponding to 30% of the value of the contract.

6. On 21 February 2019, the player returned to Country D.

7. On 15 March 2019, the player flew back to Country C.

8. By means of a letter addressed to the alleged club’s lawyer, Lawyer F, on 21 March 2019, the player put the club in default of the payment of the total amount of EUR 112,500, consisting of EUR 67,500, which fell due on 10 January 2019, and EUR 45,000, which fell due on 10 March 2019.

9. In reply, Lawyer F pointed out that he was not the club’s representative but that, however, he was going to forward the correspondence received to “the necessary division” of the club. It followed an exchange of further correspondence.

10. On 23 May 2019, the player addressed a further letter to the club, putting it in default of the payment of the total amount of EUR 202,500, corresponding to the previously demanded EUR 112,500 plus EUR 90,000, which had allegedly become due on 10 May 2019, giving it time to remedy its default until 7 June 2019.

11. By letter dated 8 June 2019, the player unilaterally terminated the employment contract with immediate effect.

12. The player signed an employment contract with the club of country C, Club E (hereinafter: the Counter-Respondent II), valid as from 22 July 2019 until 10 June 2021. According to the said contract, he was entitled to a weekly basic wage of GBP 1,700 and a “fixed payment entitlement” of 3,825 as well as other various bonuses.

13. On 4 July 2019, the Player lodged a claim against the club, maintaining that he had just cause to terminate the contract and requesting:

a. outstanding remuneration in the amount of EUR 202,500, plus 5% interest p.a. as from 11 May 2019 until the date of effective payment;

b. compensation for breach of contract in the amount of EUR 900,000, corresponding to the residual value of the contract, plus 5% interest p.a. as from 9 June 2019 “or, alternatively, as from the submission of this claim” until the date of effective payment.

14. The player explained, first of all, that, during his first month in Country D he was “not feeling very well” but he thought that he could “get used to the Life and work style of Country D”. The player further claimed that the was not able to live with his family for visa issues, that allegedly the club failed to provide, which caused him significant distress.

15. Moreover, the player added that the club made the payments with delay. The player further pointed out that the club had explained to him that, due to international sanctions, payments could only be performed in cash. Moreover, the player recalled that these payments were always made in peculiar ways, such when he was instructed to receive a bag full of cash in a public restroom inside the airport of Istanbul. The player claims this was frequent.

16. The player added that, after having suffered a panic attack due to the conditions he found himself in in Country D, he tried to leave the country on 27 October 2018 but without success, as his departure was “hindered at airport of capital G”. The player further recalled that his situation in Country D worsened to the point that it became unbearable and he “fell into depression, felt hopeless and, at one point, wanted to end his life”.

17. The player recalled that during the time between 12 November 2018 and 20 February 2019 he was on medical leave due to the nervous breakdown that the situation in which the club had put him in Country D had caused him.

18. Moreover, the player maintained that the club, “instead of supporting him in his recovery […] shared confidential details of his health situation with the public and threatened to sue him and ruin his career”.

19. The player then recalled that on 21 February 2019 he returned to Country D and provided his services to the club, although he was forced to train alone, without – however – the club fulfilling its financial obligations.

20. The player, therefore, concluded that he had just cause to terminate the employment contract on 8 June 2019, since, by then, the club had failed to remit to him remuneration in the total amount of EUR 202,500, consisting of EUR 67,500, which fell due on 10 January 2019, EUR 45,000, which fell due on 10 March 2019 and EUR 90,000, which fell due on 10 May 2019.

21. The player further pointed out that he had been absent from trainings and matches only when he was on medical leave and could not return to the club.

22. Moreover, the player recalled that, apart from not paying him his dues, the club also threatened his safety by, inter alia, forcing him to accept payments in an illegal way and by exporting and importing currency in other countries beyond the limits permitted.

23. The club, for its part, rejected the player’s claim. It pointed out that, upon signature of the contract, the player had received the first payment of EUR 202,500.

24. The club further explained that it always paid the player his salaries and that it was never put in default by him until he left Country D.

25. In this regard, the club recalled that, following the player’s absence, it sent him a warning on 17 November 2018. The club added that, since the player did not come back to Country D, it sent him another letter on 21 November 2018 and sanctioned him with a monetary fine of 30% of the contract, equal to EUR 135,000. Additionally, the club indicated that, when the player finally returned on 21 February 2019, he was not in shape and had to undergo special trainings as a consequence.

26. The club further submitted that, on 29 April 2019, the player proposed to end the contractual relationship, however the club had to reject such proposal. The club concluded that, from the player’s behaviour, it can be noted that he was not feeling well in Country D and forced his move back to Country C where, in fact, he signed a new employment contract with the Counter-Respondent II.

27. In light of the above, the Club counterclaimed against the player and the Counter-Respondent II, seeking compensation for breach of contract in the amount of EUR 1,400,000, consisting of (i) EUR 500,000 as damaged suffered and calculated on the “mercantile value” of the player and (ii) EUR 900,000 in relation to the residual value of the contract.

28. The Counter-Respondent II, for its part, submitted that, as per the player’s submissions, he had terminated the contract with the club with just cause. Accordingly, the Counter-Respondent II requested that the counterclaim filed by the club be dismissed.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 4 July 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

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 conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition March 2020), 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 C and a club of country D.

3. Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of Players (edition March 2020), and considering that the present claim was lodged on 4 July 2019, the June 2019 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. However, the DRC emphasised that in the following considerations, it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. Having said this, the DRC acknowledged that the player and the club executed the contract, valid “for 3 seasons from beginning of season 2018-2021 until the full sport season” and according to which the player was entitled to a yearly remuneration of EUR 450,000.

6. In continuation, the DRC observed that whilst feeling unwell, the player left Country D and travelled to Country C, informing the club thereafter that he would not return to Country D on 12 November 2018. The reason for this, according to the player, was his health condition, consistent with a medical prescription recommending him to be absent from work for a period of one month, i.e. from 15 November 2018 to 14 December 2018.

7. What is more, the Chamber observed that such period of leave was extended twice, respectively on 13 December 2018 and 23 January 2019, ultimately ending on 20 February 2019. The DRC gave due consideration to the fact that after resuming his activities with the club on 21 February 2019, the player left for Country C again on 15 March 2019, not to return.

8. The DRC also took note that the club contested the player’s absence during the aforementioned period, leading to the imposition of a fine on the player by the club of 30% of his remuneration on 21 November 2018.

9. In continuation, the DRC observed that on 21 March 2019, i.e. when the player was in Country C, the player put the club in default of the payment of the total amount of EUR 112,500, consisting of EUR 67,500, which fell due on 10 January 2019, and EUR 45,000, which fell due on 10 March 2019.

10. Lastly, the members of the Chamber took into account that, on 8 June 2019, the player notified the club of the termination of the contract on the basis, inter alia of outstanding remuneration, which amounted to EUR 202,500, consisting of EUR 67,500, which fell due on 10 January 2019, EUR 45,000, which fell due on 10 March 2019 and EUR 90,000, which fell due on 10 May 2019. The Chamber observed that the club, for its part, submits that the player terminated the contract without just cause, and requested compensation for breach of contract and that the Counter-Respondent II be considered jointly liable.

11. The DRC highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the player had just cause to terminate the contract on 8 June 2019.

12. Firstly, the DRC observed that the player was absent from the club between 12 November 2018 and 21 February 2019, having extended – unilaterally – his leave period twice during such period. The DRC is further observant of the fact that after indeed resuming his duties with the club, the player left again for Country C on 15 March 2019, only then to send his first default notice to the club, on 21 March 2019, and not to return.

13. Secondly, the Chamber observed that the club, while contesting the player’s medical records, did not engage in any meaningful action to examine him; it neither hired a medical expert in Country C and require the player to attend a consultation with such expert, for instance; nor sent the club’s physician to effectively assess the player’s condition.

14. Additionally, the Chamber observed that the club both made publicly available the player’s medical report, and ultimately hired a new player in replacement of the player on June 2019.

15. In light of the foregoing circumstances and the particularities of the case, the Chamber concluded that from the player’s behaviour, he was not interested in resuming his duties with the club; likewise, the club was also not genuinely interested in the player’s services. As such, the Chamber is of the opinion that the parties mutually and naturally departed from the contract, which was ultimately mutually terminated in June 2019.

16. Consequently, the Chamber decided that as the contract’s termination took place on a mutual basis, no compensation for breach of contract is due to any of the parties.

17. Notwithstanding the foregoing, the Chamber observed that, by the time of termination, the player deemed that EUR 202,500 consisting of EUR 67,500, which fell due on 10 January 2019, EUR 45,000, which fell due on 10 March 2019 and EUR 90,000, which fell due on 10 May 2019, remained unpaid.

18. The Chamber then turned its attention to the arguments of the club and acknowledged that according to the latter the player’s salaries were “paid regularly”.

19. In continuation, 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. With that in mind, the Chamber observed that the club did not presented evidence of payment of the player’s requested salaries in the amount of EUR 202,500. In fact, the DRC observed that the payment receipt filed by the club refers only to the payment made in August 2018, therefore having no connection with the amounts claimed by the player.

20. As such, and in light of the player’s submissions, the Chamber concluded that the club failed to pay the player salaries in the total amount of EUR 202,500.

21. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the club is liable to pay to the player the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 202,500.

22. In addition, taking into consideration the Claimant/Counter-Respondent I’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 I interest at the rate of 5% p.a. on the outstanding amount of EUR 202,500 as of 11 May 2019 until the date of effective payment.

23. Finally, taking into account the consideration under number II./3. 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.

24. In this regard, the DRC pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban 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.

25. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent/Counter-Claimant does not pay the amounts due to the Claimant/Counter-Respondent I within 45 days as from the moment in which the Claimant/Counter-Respondent I, following the notification of the present decision, communicates the relevant bank details to the Respondent, 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 Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

26. The DRC recalled that the above-mentioned ban 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.

27. The DRC concluded its deliberations by rejecting all further requests for relief filed by the parties.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent I, Player A, is partially accepted.

2. The counterclaim of the Respondent/Counter-Claimant, Club B, is rejected.

3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent I the amount of EUR 202,500, plus interest at the rate of 5% p.a. as from 11 May 2019 until the date of effective payment.

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

5. The Claimant/Counter-Respondent I is directed to inform the Respondent/Counter-Claimant, 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 point 3. above.

6. The Respondent/Counter-Claimant shall provide evidence of payment of the due amount in accordance with point 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount plus interest due in accordance with point 3. above is not paid by the Respondent/Counter-Claimant within 45 days as from the notification by the Claimant/Counter-Respondent I of the relevant bank details to the Respondent/Counter-Claimant, the Respondent/Counter-Claimant shall be banned 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 (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 are paid.

9. In the event that the aforementioned sum plus interest is 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.

*****

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 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. 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 (CAS)

Avenue de Beaumont 2, CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer