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 25 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Jérôme Perlemuter (France), member

Stéphane Burchkalter (France), member

on the matter between the player,

Leandro Gabriel Torres, Argentina,

represented by Mr Javier Tebas Llanas

as Claimant / Counter-Respondent

and the club,

FC Dynamo Brest, Belorussia

as Respondent / Counter-Claimant

and the club,

Club Atlético de San Luis, Mexico

as Intervening Party

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 21 March 2017, the Argentinian player, Leandro Gabriel Torres (hereinafter: the player) born on 4 November 1988, signed an employment contract (hereinafter: contract) with the Belarusian club, FC Dynamo Brest (hereinafter: FC Dynamo) valid as from the date of signature until 20 March 2018.

2. According to clause 2.18 of the contract, the player shall not “enter into negotiations regarding a transfer to any other club […] during the effective period hereof without the permission of [FC Dynamo]. Should [the player] get any proposal to conduct negotiations from any third party, [the player] shall immediately inform [FC Dynamo] in writing about such proposal”.

3. In accordance with clause 2.25 of the contract, the player shall “not later than one month before the expiration of the effective period hereof, inform [FC Dynamo] in writing about his decision on either to continue or to terminate the employment relationship”.

4. Clause 3.11 of the contract stipulated the following: “The employee has the right to unilaterally terminate the contract after 17.07.2017.”

5. By means of clauses 4 and 5, the player was entitled to a monthly salary of USD 585 “according to staff pattern”, which equals USD 500 “net”, to be paid on “the 10th day of every month in the currency of” Belarus.

6. Clause 16 of the contract stipulated the following: “This Contract shall not be terminated unilaterally neither by the Employee nor by FC “Dynamo Brest” during the football season except for the cases specified in paragraph 18 hereof. In case of early termination of this Contract by either party, FC “Dynamo Brest” shall inform the Association within 7 (seven) days stating the reasons for early termination of this Contract. In case of early termination of this Contract by the Employee, the Employee shall pay to the Employer compensation for early termination in amount of 500 000 (five hundred thousand) Euro.

7. On 1 July 2017, the player and FC Dynamo signed an “Additional Agreement No. 1 to the contract dd. March 21” (hereinafter: additional agreement).

8. By means of clause 1 of the additional agreement, the parties agreed to amend the validity of the contract to 21 March 2017 until 30 June 2019.

9. By means of clause 4 of the additional agreement, the player was entitled to a monthly salary of USD 2,907 “according to staff pattern”, which equals USD 2,500 “net in accordance with the official exchange rate fixed by the national bank of the Republic of Belarus”.

10. By means of the final clause of the additional agreement, the parties agreed that “other provisions of the employment contract […] shall remain unchanged”.

11. On 13 November 2017, FC Dynamo bought the player flight tickets for him to travel on 7 December 2017 to Argentina, as well the return to Belarus on 14 January 2018.

12. On 12 December 2017, the player informed FC Dynamo in writing that it was his “intention” to terminate the employment relationship as per 14 January 2018 in accordance with Clauses 2.25 and 3.11 of the contract. In said letter, the player further requested FC Dynamo to provide a “letter of freedom” as from 14 January 2018.

13. On 12 January 2018, the player sent an email to FC Dynamo, reminding it that the “rescission will be effective next January 14th”. The player further held that “in order that you don’t incur in an irregular situation blockade, I request you to send to this email in the next 48 hours: […] Letter of freedom”. Finally, the player requested FC Dynamo to accept “in the FIFA ITMS system any transfer that provides a valid contract with [the player] signed after January 13th”.

14. On 15 January 2018, the player informed FC Dynamo via email that the contract had been terminated on 14 January 2018. In said email, the player requested the “letter of freedom”, as well as accepting “in the FIFA ITMS system any transfer that provides a valid contract with [the player] signed after January 13th”.

15. On 16 January 2018, FC Dynamo informed the player via email that it “has been participating in Belorussian Championship starting from 13th of January”. The Respondent/Counter-Claimant further reminded the player that, in accordance with clause 16 (2) of the contract, “this contract shall not be terminated […] during the football season”. Thus, as per FC Dynamo “the contract shall not be terminated unilaterally by [the player]”.

16. On 15 January 2018, the player signed an employment contract with the Mexican club, Atletico San Luis (hereinafter: San Luis) valid as from the date of signature until 31 December 2018.

17. By means of Clause 4.1 of the employment contract signed between the player and San Luis, the player was entitled to the total amount of USD 60,000, payable in 11 instalments “as from January”.

18. On 18 January 2018, San Luis requested the player’s International Transfer Certificate (ITC) via the Transfer Matching System (TMS).

19. On 31 January 2018, the Mexican League informed San Luis that the ITC request as regards the registration of the player with San Luis was rejected by the Belarussian Football Association alleging that the player “had a valid contract with [FC Dynamo] until 30 June 2019”.

20. On 31 January 2018, FC Dynamo contacted San Luis with regard to the ITC request of the latter regarding the registration of the player. As per FC Dynamo, the 2018 season in Belarus began on 13 January 2018. Thus, as per FC Dynamo, the player’s unilateral contract termination as per 14 January 2018 violated Clauses 2.18 and 16 of the contract.

21. Furthermore, in said letter, FC Dynamo reminded San Luis of its obligations under art. 18 para. 3 of the FIFA Regulations on the Status and Transfer of Players, namely that it must inform the player’s current club in writing before entering into negotiations with the player. As per FC Dynamo, neither the player nor San Luis had contacted FC Dynamo regarding negotiations.

22. On 28 February 2018, the Single Judge of the FIFA Players’ Status Committee authorized the Mexican Football Federation (FMF) to provisionally register the player for San Luis. In said decision, the Single Judge of the FIFA Players’ Status Committee inter alia emphasized that “at no point during the ITC procedure has [FC Dynamo] requested the return of the player […] These circumstances led the Single Judge to conclude that [FC Dynamo] does not appear to be genuinely and truly interested in maintaining the services of the player anymore, but is rather looking for financial compensation”.

23. The player lodged a claim against FC Dynamo in front of FIFA for breach of contract, and requested the amount of USD 19,500 corresponding to “the salary he did not receive [from San Luis] during the period of professional inactivity provoked by the contractual breach [of FC Dynamo]”, as follows:

- USD 6,500 for the period “15 January 2018 – 31 January 2018;

- USD 13,000 for the period “1 February 2018 – 1 March 2018”.

24. Furthermore, the player requested the imposition of sporting sanctions on FC Dynamo.

25. The player held that, as per the contract signed with San Luis, he was entitled to the total amount of “USD 143,000 payable in 11 monthly instalments”. As per the player, this amount corresponded to both the amount he is entitled to under “the employment contract as well as the amount corresponding [to him] for image rights”.

26. The player argued that he terminated the contract with FC Dynamo correctly in accordance with clause 3.11 of the contract.

27. According to the player, FC Dynamo’s sole objective in this matter was to obstruct the player’s career, following his rightful unilateral contractual termination with FC Dynamo.

28. Upon having being informed that the player had initiated proceedings against it, FC Dynamo filed a counterclaim against the Player and San Luis. FC Dynamo underlined that it had always complied with its contractual obligations vis-à-vis the player.

29. In this context, FC Dynamo held that it was clear that it was both its intention and the player’s to continue their employment relationship, as is demonstrated by the signing of the additional agreement on 1 July 2017. However, as per FC Dynamo, “the player terminated the […] contract unexpectedly and stopped to perform his labour duties [and] never returned to [FC Dynamo]”.

30. In continuation, FC Dynamo made particular reference to clause 16 of the contract and highlighted that the contract shall not be terminated during the football season. In this regard, FC Dynamo held that the player terminated the contract on 14 January 2018, whereas the football season in Belarus started on 13 January 2018.

31. In continuation, FC Dynamo referred to art. 16 of the FIFA Regulations on the Status and Transfer of Players, and stated that a contract cannot be unilaterally terminated during the course of a season. Furthermore, FC Dynamo referred to the player’s termination notice of 12 December 2017, and held the following:

- The termination notice contained no reasons or clarifications as to the termination;

- The notice was not signed by the player or given by the player;

- The notice was signed by the player’s lawyer, however “no confirmation of his authorities as a representative [of the player] were provided thereof”.

32. Consequently, as per FC Dynamo, the unilateral termination was not properly executed by the player.

33. In addition, FC Dynamo stated that, prior to his termination notice, the player “never demonstrated his intention to terminate the contract and/or claimed infringement of his labour rights as [FC Dynamo’s] employee”. In this context, FC Dynamo underlined that the player never sought “any agreement […] as to the termination of the contract […] and no just cause to terminate the contract has ever occurred”.

34. Moreover, according to FC Dynamo, the player entered into contractual negotiations and signed an employment contract with San Luis while he was still employed by FC Dynamo. As per FC Dynamo, even if it were considered that the contract was terminated on 14 January 2018, it should be highlighted that the player signed with San Luis on the next day.

35. According FC Dynamo, the behaviour from the player and San Luis demonstrate that they negotiated “within the duration of the contract between [the player and FC Dynamo]”.

36. In continuation, FC Dynamo referred to the letter dated 31 January 2018 it sent to San Luis, and held that San Luis had not replied to said letter.

37. Given the above, FC Dynamo argued that it is entitled to the amount of EUR 500,000 as compensation for breach of contract, which it believes to comply “with common practice in football at the global level”, and submitted that San Luis should be held jointly and severally liable

38. Finally, FC Dynamo held that the contract was unilaterally terminated within the protected period.

39. In his replica, the player held that as per the UEFA calendar, the season in Belarus commenced “in the month of March”.

40. With respect to FC Dynamo’s position that the player and San Luis had negotiated while the employment contract with FC Dynamo was still valid, the player argued that FC Dynamo had not provided any evidence in this regard.

41. The player then referred to art. 18 par. 3 of the FIFA Regulations on the Status and Transfer of Players and stated that “a professional shall only be free to conclude a contract with another club if his contract with the present club […] is due to expire within six months”. In light of this, the player argued that he was free to negotiate with another club, given that the contract was going to expire on 14 January 2018.

42. In its duplica, FC Dynamo reiterated that the 2018 season in Belarus commenced on 13 January 2018, and maintained that the player never denied having negotiated with San Luis prior to unilaterally terminating the contract.

43. In its comments to the matter at hand, San Luis firstly held that the it was only approached by the player on 10 January 2018 “as a free agent, presenting [San Luis] with a copy of his employment contract and the termination letter dated 12 December 2017”.

44. According to San Luis, it was informed by the player that FC Dynamo had never responded to the termination notice dated 12 December 2017, and pointed out that FC Dynamo never responded with regard to the player’s “specific requests” of 12, 15 and 16 January 2018.

45. In continuation, San Luis referred to FC Dynamo’s correspondence dated 16 January 2018 sent to the player, and argued that FC Dynamo never requested the player to return to FC Dynamo and resume his duties.

46. Moreover, with regard to the correspondence by FC Dynamo dated 31 January 2018, San Luis pointed out that the again FC Dynamo failed to request the return of the player.

47. Finally, San Luis referred to the decision of 28 February 2018 by the Single Judge of the FIFA Players’ Status Committee, and highlighted that such decision emphasized that FC Dynamo had not requested the player to return.

48. Subsequently, San Luis argued that it cannot be held jointly liable for damages “because the unilateral termination was properly executed”. In this regard, San Luis held that, by means of the termination notice dated 12 December 2017, FC Dynamo had full knowledge and consciousness of the termination will of the player. Moreover, as per San Luis, Clause 3.11 of the contract “does not specify the form of the notice for termination”.

49. According to San Luis, given that the player properly exercised his right to terminate, San Luis cannot be reasonably be found to have induced the player to breach the contract.

50. With regards to FC Dynamo’s argument that the 2018 season started on 13 January 2018, San Luis pointed out that the return flight ticket for the player, and bought by FC Dynamo, was scheduled for 14 January 2018.

51. Given the above, San Luis determined that it did not play a role in the player’s decision to terminate the contract with FC Dynamo and that, as a consequence, no sporting sanctions can be imposed on it.

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 24 January 2018. 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 January 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 an Argentinian player, a Belarusian club and a Mexican club.

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 January 2020), and considering that the present claim was lodged on 24 January 2018, the January 2018 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. The members of the Chamber started by acknowledging that the player and FC Dynamo executed the contract on 21 March 2017, which was valid until 20 March 2018. Further, the DRC noted that the player and FC Dynamo executed on 1 July 2017 the additional agreement, by means of which the contract was amended to both extent its term until 30 June 2019 and to change the player’s remuneration.

6. To this extent, the DRC particularly observed the contents of the final clause of the additional agreement, which established that the clauses of the contract remained unchanged except for the amendments outlined above.

7. Additionally, the Chamber gave due consideration to the fact that the player terminated the contract on 14 January 2018 in writing, and that on 15 January 2018 the player and San Luis executed an employment contract valid until 31 December 2018. Moreover, is was noted by the Chamber that San Luis requested the player’s ITC on 18 January 2018 and that by decision of the Single Judge of the Players’ Status Committee of 28 February 2018, the player’s provisional registration with San Luis was allowed.

8. In continuation, the Chamber noted that the player lodged a claim against the Respondent for breach of contract, and requested the payment of USD 19,500 as compensation corresponding to the salary the player did not receive from San Luis during the period of professional inactivity “provoked by the contractual breach [of FC Dynamo]”, i.e. the period during which the player’s registration was disputed by San Luis and FC Dynamo.

9. Thereafter, the members of the Chamber took note of the reply and counterclaim of FC Dynamo, who alleged that the player could not terminate the contract during the course of a season, and therefore should pay FC Dynamo compensation for breach of contract in the amount of EUR 500,000 “and interests”. As such, it was also noted by the Chamber that FC Dynamo requested that San Luis be deemed jointly and severally liable for the payment of such compensation.

10. The Chamber then acknowledged the contents of San Luis’ position on the matter, according to which it bore no responsibility for the termination of the contract between the player and FC Dynamo, which, as per San Luis, had taken place in conformity with the contract’s relevant stipulations.

11. From the outset, the Chamber established that the centre of the dispute at hand concerns whether the player was contractually entitled to terminate the contract on 14 January 2018. Accordingly, the Chamber reverted to clause 3.11 and 16 of the contract, and noted that neither had been modified by virtue of the additional agreement, as per the wording of its last clause.

12. To this extent, the DRC then proceeded to examine in detail the tender of both aforementioned clauses, and concluded that due to the unambiguous wording of clause 3.11, the player was entitled to unilaterally terminate the contract as from 17 July 2017 without any consequences.

13. Additionally, the Chamber took due consideration to the fact that on 13 November 2017, FC Dynamo bought the player flight tickets for him to travel on 7 December 2017 to Argentina, as well the return to Belarus on 14 January 2018, therefore allowing the player to be absent during this period. In light of such circumstances, the Chamber found that FC Dynamo could not invoke the fact that the season in Belarus had started on 13 January 2018 as an impeditive of the player’s entitlement to termination, as directed above.

14. Consequently, the Chamber concluded that the player terminated the contract with just cause, and having established that it then turned its attention to the question of the consequences of the termination.

15. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the counterclaim of FC Dynamo should be rejected, as no breach was committed by the player.

16. With regards to the request for compensation by the player from FC Dynamo, the Chamber noted that it reverts to salaries which were not paid by San Luis, therefore arising from the employment agreement between San Luis and the player, to which FC Dynamo was not a party.

17. As such, the Chamber was eager to emphasize that any claims arising from the aforementioned contract between San Luis and the player should be directed to the parties thereto.

18. In light of the foregoing, the Chamber decided that San Luis did not have standing to be sued by the player in relation to salaries allegedly unpaid by San Luis, and therefore decided that the claim of the player for compensation should be rejected

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Leandro Gabriel Torres, is partially accepted.

2. It is established that the Claimant / Counter-Respondent, Leandro Gabriel Torres, was contractually entitled to terminate the employment contract with the Respondent / Counter-Claimant, FC Dynamo Brest.

3. The Claimant / Counter-Respondent’s claim for compensation is rejected.

4. The counterclaim of the Respondent / Counter-Claimant, FC Dynamo Brest, is rejected.

*****

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