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 20 February 2020
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 February 2020,
in the following composition:
Clifford J. Hendel (USA), Deputy Chairman
Roy Vermeer (Netherlands), member
Daan De Jong (Netherlands), member
on the claim presented by the club,
Sporting Clube de Portugal, Portugal,
represented by Messrs Juan de Dios Crespo, José Carlos Oliveira & Alfonso León Lleó
as Claimant
against the player,
Rafael Alexandre da Conceição Leão, Portugal,
represented by Mr Fernando Veiga Gomes
as Respondent I
and against the club,
LOSC Lille, France,
represented by Messrs Jon Ellis and Marc Cavaliero
as Respondent II
regarding an employment-related dispute between the parties
I. Facts of the case
1. On 14 September 2017, the Portuguese player, Rafael Alexandre da Conceição Leão (hereinafter: the player or the Respondent I) and the Portuguese club, Sporting Clube de Portugal (hereinafter: Sporting CP or the Claimant), signed an employment contract (hereinafter: the contract) valid as from 1 July 2017 until 30 June 2022.
2. According to the contract, the player was entitled to the following fixed remuneration:
(a) Season 2017/18: EUR 60,000 payable in 12 installments and EUR 1,666 lump sum fee;
(b) Season 2018/19: EUR 65,004 payable in 12 instalments of EUR 5,417;
(c) Season 2019/20: EUR 70,008 payable in 12 instalments of EUR 5,834;
(d) Season 2020/21: EUR 75,000 payable in 12 instalments of EUR 6,250;
(e) Season 2021/22: EUR 89,004 payable in 12 instalments of EUR 6,667;
3. According to art. 8 of the contract, the player has the right to unilaterally terminate the contract without just cause under the following conditions:
(a) The termination occurs during the period as from 1 June and 1 July of each sports season, with Sporting CP to be notified 15 days in advance in relation to the date when the termination shall become effective;
(b) Together with such notification an immediate payment of EUR 45,000,000 to the club;
(c) Once the conditions under a. and b. are fulfilled, Sporting CP undertakes to release the player and authorise the Portuguese FA to forward the ITC upon request.
4. In addition, art. 11 of the contract foresees in the event that a party terminates the contract without just cause, the counterparty shall be compensated for damages caused as follows:
(a) If Sporting CP terminates the contract without just cause, it undertakes to pay to the player a compensation amounting to the residual value of the contract, from which it can deduct remuneration to be received by the player under a new contract corresponding to the duration of the breached contract;
(b) If the player terminates the contract without just cause, “the player shall be obliged to pay to [Sporting CP] a compensation corresponding to the value of the remunerations he should receive until the end of the terminated contract, his registration with a third Club being dependent, within the legal sports scope, on the payment of the amount of € 45,000,000.00 (forty five million euro) corresponding to the valuation of the player’s sports participation rights established by the parties in this contract.”
5. Art. 10 of the contract stipulates that “The Parties agree to confer exclusive and final competence to settle any dispute arising out of this Contract or related with same to the Tribunal Arbitral do Desporto (TAD)”.
6. On 15 May 2018, a group of around 50 individuals, members of an association of supporters following Sporting CP, illegally entered Sporting CP’s facilities and proceeded to break in the building where the first team, including the player, was hosted. Some of Sporting CP’s employees and players were physically threatened and/or attacked.
7. On 14 June 2018, the player terminated the contract invoking just cause. In this respect, the player held that Sporting CP had breached its legal and contractual obligations and had caused harm to his personal and professional dignity as well as has his physical safety and integrity, which led him to fear for his life and impaired the minimum conditions required to exercise his activity as professional player. Making also reference to Portuguese labour law and the “collective employment contract” entered into between the Portuguese league and the union of professional players, the player stated that those conditions had been breached, making the employment relationship no longer sustainable.
8. On 1 August 2018, the “Comissao Arbitral Paritari (CAP)” (hereinafter: CAP) in Portugal validated the player’s termination for “sports purposes”. The decision stipulated that “he can proceed to the celebration of sports employment contract with third parties”.
9. On 17 August 2018, the player lodged a claim against Sporting CP for termination of the contract with just cause in front of the “Tribunal Arbitral do Desporto (TAD)” (hereinafter: TAD), the Portuguese court of arbitration for sport). The player requested compensation in the amount of EUR 390,000. Sporting CP duly filed its answer, rejecting the claim and requesting compensation in the amount of EUR 45,292,516 from the player for termination without just cause.
10. On 13 October 2018, Sporting CP rejected the jurisdiction of the TAD, and requested that its proceedings be closed and the dispute be forwarded to the FIFA Dispute Resolution Chamber, on the basis that since the player had signed a new employment contract with LOSC Lille and an International Transfer Certificate (hereinafter: ITC) had been requested, the dispute gained international dimension.
11. By correspondence of 5 December 2018, the TAD sent an “Order” to the parties confirming the positions of the player and Sporting CP, confirmed its jurisdiction to hear the contractual dispute between the parties and determining the issues to be adjudicated.
12. In addition, the TAD sent a further correspondence to the parties on 2 January 2019 once again rejecting the request for closure of the proceedings of Sporting CP and reiterating its jurisdiction to hear the contractual dispute between the player and Sporting CP.
13. The player signed a new employment contract with the French club, LOSC Lille (hereinafter also referred as: the Respondent II), valid as from 2 August 2018 until 30 June 2023, according to which the player would earn a monthly salary of EUR 10,000 for the duration of said contract, as well as a loyalty bonus of EUR 2,545,075 due on 5 July 2019.
14. In this respect, LOSC Lille entered a transfer instruction in the Transfer Matching System (hereinafter: TMS) and requested the International Transfer Certificate (hereinafter: ITC) from Sporting CP on 31 August 2018, which was sent by the Federação Portuguesa de Futebol (hereinafter: FPF) on the same day. The Fédération Française de Football (hereinafter: FFF) confirmed receipt of the ITC on 4 September 2019.
15. On 5 November 2018, Sporting CP lodged a claim against the player, requesting the FIFA Dispute Resolution Chamber to rule that the player had no just cause to terminate the contract, and that as a consequence he and LOSC Lille must be held jointly and severally liable to pay compensation of an amount of EUR 45,292,516 plus 5% interest p.a. as from 15 June 2018, corresponding to :
(a) EUR 292,516 as the residual value of the contract prematurely terminated;
(b) EUR 45,000,000 as per art. 11 of the contract.
(c) CHF 20,000 as legal costs;
(d) 6 month playing ban on the player and two consecutive registration period ban against LOSC Lille.
16. On 23 January 2019, the player replied to the claim of Sporting CP and first argued that the claim is not admissible. Alternatively, the player deemed that he had just cause to terminate the contract and lodged a counterclaim, requesting the following amounts:
(a) EUR 290,000 as compensation for breach of contract;
(b) EUR 100,000 as damages.
17. In its reply to the claim of Sporting CP, LOSC Lille argued that the claim of Sporting CP is inadmissible. Alternatively, LOSC Lille rejected the claim of Sporting CP in full.
Admissibility:
18. The player rejected Sporting CP’s position as to the jurisdiction of FIFA. In fact, making reference to the exclusive arbitration clause of the contract (art.10 – see below), the player indicated that he lodged a claim against Sporting CP in front of the “TAD for breach of contract, and in response Sporting CP lodged a counterclaim on 17 September 2018.
19. The player underlined that Sporting CP did not contest the jurisdiction of the TAD until 13 October 2018, when it requested the TAD proceedings to be closed in favour of an arbitration in front of the FIFA DRC in view of the international dimension of the dispute, the player having moved to a French club, LOSC Lille. The player underlined that such request was rejected by the TAD by means of two correspondences dated 5 December 2018 and 2 January 2020.
20. The player and LOSC Lille concluded that the dispute in front of the DRC is inadmissible due to lis pendens. LOSC Lille pointed out that the TAD started to take evidence from the relevant parties on 21 January 2019.
21. In any case, LOSC Lille emphasised that art. 22 lit. a) of the Regulations on the Status and Transfer of Players was not applicable in view of the fact that the claim of Sporting CP is not linked to the ITC request made by LOSC Lille as it occurred 10 weeks after the player’s unilateral termination, and that the dispute between the player and Sporting CP was not of an international dimension as it involved two Portuguese parties.
22. Sporting CP is of the opinion that the dispute should be heard by FIFA in view of the fact that the claim is of an international dimension since an ITC was requested and the player signed a contract with a non-Portuguese club.
23. What is more, Sporting CP explained that the TAD lacked jurisdiction in view of the international dimension of the dispute: Sporting CP insisted that should the player be found to have breached the contract by the TAD, the tribunal would be in the incapacity to declare LOSC Lille jointly and severally liable.
24. Sporting CP also pointed out that the proceedings before the TAD and the DRC are not based on the same object, cause and parties.
25. Finally, Sporting CP declared that “regardless of the fact that TAD considered itself competent – decision that we must recall is not final and binding since it is still subject to an effective judicial review over the Portuguese Court of Appeal – which has to be strongly contested (…), the FIFA DRC must issue a decision in the present dispute assessing the liabilities of all three parties herein involved”.
Substance:
26. The player emphasized that since January 2018, the then-president of Sporting CP at the time started to put pressure on all the players via the media and via social media channels, allegedly bullying them during team meetings and creating a threatening environment around the team. He stated that such toxic atmosphere culminated in the training ground attack on 15 May 2018, and he insinuated that the then-president of Sporting CP may have played a role in organizing this attack against the players.
27. The player stated that on that day, the attackers forced their way inside the club’s facilities and attacked the players in the changing room where they had retreated. He further alleged that the safety and security measures put in place by Sporting CP could not guarantee the safety of the players, that he did not receive any support afterwards, and as such highlighted that he could not continue the working relationship. In fact, the player made reference to ongoing criminal proceedings in which the player is involved as the claimant and two of Sporting CP’s club officials at the time (including its president at the time of the attack) are accused of having organized said attack.
28. Sporting CP for its part vehemently denied the accusations of the player regarding the negative atmosphere around the team. In particular, Sporting CP explained that the different messages published and/or sent by its president to the press or to the team captains were (a) not directly addressed to him, (b) more rallying cries with constructive criticism in order to bring better results rather than personal threats, (c) and that in any case those critics after results and performances below the level of performance expected were part and parcel of the job of a professional footballer. In fact, Sporting CP referred to the “specificity of sport”, an industry with “strong public exposure” and higher level of scrutiny and consequently criticism.
29. Regarding the training ground attack on 15 May 2018, Sporting CP stipulated that it could not in any way condone these criminal actions, and emphasized that it took all possible measures to guarantee the safety of its employees (i.e. acting in respect of UEFA and the Portuguese FA safety and security regulations, club officials tried to refrain the attackers from entering the facilities), and that such extraordinary event was out of its control. Sporting CP underlined that “[it] as an employer cannot be held liable against every incident which potentially might happen”, and, pointing out to several incidents that had occurred between fans and players of other Portuguese teams, declared that those confrontations were quite common in Portugal.
30. As a consequence, Sporting CP stated that the player did not have just cause to terminate the contract. Sporting CP emphasized that:
(a) The severity of the incident on 15 May 2018 did not amount to a violation of the player’s personality rights and that he was not exposed to mobbing of any kind throughout their contractual relationship;
(b) The player did not send any complaint and/or warning and/or attempt to discuss his situation with Sporting CP and what is more the termination took place a month after the allegedly disturbing events, suggesting a possible opportunism in the player’s conduct;
31. In fact, Sporting CP stated that the player appeared unwilling to continue the contractual relationship and sought to become a free agent in order to obtain a more lucrative contract elsewhere.
32. On the other hand, the player insisted on the fact that he was in his own right to have terminated the contract and signed with a new club. The player provided a copy of the decision passed by the “Comissao Arbitral Paritari (CAP)” in Portugal on 1 August 2018 in which the CAP validated the player’s termination for “sports purposes” and indicated that “he can proceed to the celebration of sports employment contract with third parties”. What is more, the player pointed out that Sporting CP did not oppose the issuance of the ITC to LOSC Lille on 2 August 2018.
33. LOSC Lille argued that the player presented himself as a free agent, and referred back to the decision of the CAP dated 1 August 2108 which confirmed that the player was free to register with a new club. In addition, LOSC Lille highlighted that at the time of termination on 14 June 2018, the player and LOSC Lille had not been in contact, the first contact occurring at the end of July 2018, and that therefore it could not be deem to have induced the breach.
34. In this respect, Sporting CP highlighted that the CAP took a decision only as to the administrative correctness of the procedure of the termination, i.e. if the player respected the provisions sets out in art. 10 lit. (a) of the contract, but clearly stipulated that it was not in a position to take a decision as to the existence (or absence) of just cause .
35. Finally, with reference to clause 12 of the contract, Sporting CP indicated that said clause constituted a liquidated damages clause, which was mutually agreed by the parties upon signing and which was proportional. In fact, Sporting CP pointed out the reciprocity of the clause (i.e. the party unilaterally terminating the contract without just cause owes the residual value of the terminated contract to the other party), and explained that the EUR 45,000,000 additional compensation due in case of the player unilaterally terminating represented the mutually agreed sporting value of the player.
36. The player deemed that such compensation was totally disproportionate in comparison to the value of the contract he signed with Sporting CP. The player, making reference to Portuguese and Swiss labor law, concluded that such potestative clause should be deemed invalid.
37. LOSC Lille emphasized that clause 11 of the contract is not reciprocal and should be seen as a “dissuasive clause” for avoiding the player to consider the unilateral termination of his contract, and endorsed the player’s submissions in this regard.
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 5 November 2018 and decided on 20 February 2020. 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.
2. Subsequently, 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. a) of the Regulations on the Status and Transfer of Players (edition January 2020), the Dispute Resolution Chamber is in principle competent to deal with the matter, which concerns an employment-related dispute with an international dimension between a Portuguese club, a Portuguese player and a French club.
3. The DRC however acknowledged that the player and LOSC Lille contested the competence of FIFA’s deciding bodies on the basis of art. 10 of the contract, alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the TAD, mainly based on the fact that a claim involving the same parties and object in fact had already been lodged and was currently pending in front of said deciding body, causing the present claim to be affected by litispendence.
4. On the other hand, the Chamber noted that Sporting CP insisted on the competence of the FIFA DRC to adjudicate on the claim it lodged against the player and LOSC Lille, in view of the international dimension of the dispute given by the issuance of the ITC.
5. In continuation, in light of the consideration under point II./2. above, the DRC held that it had to establish whether, considering the general principle of litispendence, it could enter into the substance of the matter and pass a decision.
6. Accordingly, the Chamber deemed it appropriate to briefly recall that on the basis of the principle of litispendence, a decision-making body is not in a position to deal with the substance of a case in the event that another deciding body has already initiated proceedings involving cumulatively and necessarily the same parties and the same object.
7. In this respect, the Chamber recalled that the criterion of the identity of the parties is satisfied if the parties to the disputes are the same. Having said this, the Chamber noted that both Sporting CP and the player were the parties in the Portuguese proceedings as well as in the dispute at stake.
8. In this context, and for the sake of good order, the Chamber wished to point out that the involvement of LOSC Lille in the proceedings before the DRC does not affect the aforementioned criterion of the identity of the parties, since the alleged breach of such club is merely accessory to an alleged breach of the player.
9. Consequently, as the parties to both disputes are the same, the Chamber came to the conclusion that the condition of the identity of parties is satisfied.
10. The Chamber then turned its attention to the criterion of the object of the matter in dispute. In this respect, the members of the Chamber started by acknowledging that the identity of the subject matter is satisfied if the requests of the two claims are similar.
11. In view of the foregoing, the Chamber went on analysing and comparing the requests made by both the player and Sporting CP in front of the TAD and of the DRC.
12. In this respect, the Chamber noted that it is undisputed by the parties that on 17 August 2018, the player lodged a claim against Sporting CP for termination of the contract with just cause in front of the Portuguese TAD, requesting compensation in the amount of EUR 390,000. Furthermore, the Chamber noted that, alternatively to the objection to FIFA’s competence, the player lodged a counterclaim in front of the DRC claiming he had just cause to terminate the contract and requesting compensation in the total amount of EUR 390,000.
13. It also remained undisputed by the parties that, prior to lodging its claim at FIFA, Sporting CP duly filed its answer to the aforementioned claim of the player at the TAD, while also lodging a counterclaim against him in front of that national deciding body, requesting compensation in the amount of EUR 45,292,516 from the player for his alleged breach of contract. Subsequently, the DRC also noted that on 5 November 2018 Sporting CP lodged a claim at FIFA against the player for alleged breach of contract without just cause, requesting compensation in the amount of EUR 45,292,516 plus 5% interest p.a. as from 15 June 2018.
14. In view of the aforementioned, the Dispute Resolution Chamber held that both legal actions were based on the same employment contract and that both actions were aimed at establishing either party’s liability for the early termination of the employment contract between the parties.
15. On account of the above, the Chamber determined that the object of the matter in both disputes is identical and that, therefore, the condition of identity of the object of the matter in dispute is also satisfied.
16. Consequently, the Chamber concluded that, compared to the legal action in front of the TAD, the matter at hand not only concerns identical parties to the dispute but also identical objects of the matter in dispute and has, therefore, to be considered as a clear case of litispendence.
17. For the sake of completeness of its analysis, the Chamber also pointed out that, from the documentation on file, it can be noted that on 13 October 2018, i.e. after replying to the player’s claim and lodging a counterclaim against him, Sporting CP rejected the jurisdiction of the TAD, requesting the closure of the proceedings and their transfer to the FIFA DRC, claiming that the dispute gained international dimension by the fact that the player signed a new employment contract with the French club Lille.
18. Furthermore, the Chamber noted from the documentation on file that, by means of an “Order” dated 5 December 2018, the TAD inter alia confirmed its jurisdiction to hear the contractual dispute between the parties and that in a further correspondence of 2 January 2019 the TAD once again rejected the request for closure of the proceedings of Sporting CP and reiterated its jurisdiction to hear the contractual dispute between the player and Sporting CP.
19. In light of the above, the Chamber decided that in accordance with the general legal principle of litispendence it is not in a position to deal with the substance of a similar dispute currently under examination in front of another deciding body, the competence of which was previously accepted by both parties, by lodging a claim, filing a reply as well as a counterclaim, all in that forum.
20. Consequently, the Chamber determined that due to litispendence the DRC is not competent to hear the present dispute, and therefore the claim of Sporting CP is inadmissible.
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III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Sporting Clube de Portugal, is not admissible.
*****
Note related to the publication:
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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.
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For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer