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DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO
• Data decisione: • Stagione sportiva: 2019/2020

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 23 April 2020

Decision of the
Dispute Resolution Chamber
passed on 23 April 2020,
in the following composition:
Geoff Thompson (England), Chairman
José Luis Andrade (Portugal), member
Stijn Boeykens (Belgium), member
on the claim presented by the player,
Idrissa Sega Cisse, Senegal
as Claimant
against the club,
FC Thanh Hoa, Vietnam
as Respondent
regarding an employment-related dispute
between the parties
I. Facts of the case
1. The Senegalese player, Mr Idrissa Sega Cisse, (hereinafter: the player or the Claimant) and the Vietnamese club, FC Thanh Hoa (hereinafter: the club or the Respondent) signed an employment contract (hereinafter: the contract), valid as from 1 November 2019 until 30 October 2021.
2. According to art 1.3.1 of the contract, the Claimant was entitled to the following remuneration:
 USD 85,000 “per year”, “as contract fee” payable as follows:
o 50 % “at the beginning of the season” ;
o 50% “after finishing 25th round of the season”.
 USD 8,500 as monthly salary.
3. However, art. 1.3.1, 1.3.2 and 1.3.3 of the contract provided for a variation of the salary as follows:
“1.3.1. In the 2020 football season, if a player scores between 12 and 17 goals, the Club will agreed pay the player salary and fee of USD 8,500 / month and USD 85,000 / year (players receive divided into 02 phases).
1.3.2. In the 2020 football season, if a player scores 17 or more goals, the football season in 2021 will receive a salary of: 9,000 USD / month and an annual fee of: 90,000 USD / year (players receive divided into 02 phases).
1.3.3. If the football season in 2020 The player does not record 12 goals, the player does not receive 50% of the remaining contract fee in 2020 and the Club adjusts the monthly salary and fees in 2021 as follows: Monthly salary: 2,000 USD / month and contract fee is 10,000 USD / year.”
4. Moreover, art. 2 par. 2.2 of the contract read as follows:
“The Player shall undergo promptly a complete physical/medical examination as when and required by the Club, at expense of the Club. In case for any reason the Player does not maintain the level of playing skillfulness and/or physical conditions at the satisfaction of the Club, the Club on the sole basis of the opinion of the Club’s Professional Council and Training Board has the right to unilaterally reduce the salary, the bonus and other compliments or terminate this Contract without having to compensate the Player for such early contract termination.”
5. The contract further stipulated that the Claimant was entitled to “take leave on public holidays in accordance with Vietnam Labour Code 2012. In case the public holiday falls on the training or playing time, the Player shall be made up after the end of training or tournament. The Player with full 12 months of working shall be entitled to take annual leave of 12 days when the Club has not had training or tournament schedule.”
6. Finally, art. 6 of the contract provided that “(a)ny dispute and/or difference may arise between the Player and the Club during effectiveness of this Contract, will be settled by discussion or mutual reconciliation. In the case of any failure to resolve the dispute and/or difference within 15 (fifteen) days, the Parties have the rights to put forward the dispute to the VFF for settlement. In the case that VFF cannot settle the dispute of the two Parties, the two Parties have the rights to put forward to FIFA, the decision of the FIFA shall be the final and bidding”.
7. By means of a letter dated 7 January 2020, the Claimant complained that he had not received any salary since 5 December 2019 and granted the Respondent 10 days to pay his salaries of December 2019 and January 2020.
8. On 12 February 2020, the Claimant lodged a claim against the Respondent in front of FIFA.
9. In his claim, the Claimant held that he successfully completed his medical examination prior to signing the contract with the Respondent.
10. The Claimant further claimed to have received a first payment in the amount of USD 3,000, following which he travelled back to Senegal. The Claimant then explained to have returned to Vietnam on 3 December 2019, in order to start the pre-season training with the Respondent on 5 December 2019.
11. According to the Claimant, the Respondent’s President visited him in his hotel room on 31 December 2019 and tried to convince him to sign a mutual termination agreement, which he refused to do. Subsequently, the Claimant held that on 7 January 2020, the Respondent’s President told him that he would no longer be allowed to train with the team and should refrain from attending team’s facilities, alleging that he had failed his medical tests.
12. The Claimant underlined that he had tried to solve the matter amicably with the Respondent, without success. In this regard, the Claimant explained to have “left” the club following the default notice sent to the Respondent on 7 January 2020.
13. On account of the above, the Claimant considered that the Respondent is responsible for the unilateral termination of the contract and requested the “full due” of the contract, as follows:
 USD 85,000 as the “bonus / contract signing fee 2019/20”;
 USD 85,000 as the “bonus / contract signing fee 2020/21”;
 USD 102,000 as the “salary 2019/20 @ $8500 / month (Nov 2019 to Oct 2020)”;
 USD 1,700 as the “unpaid salary Nov 2020 @ 20% (holidays)”;
 USD 99,000 as the “salary 2020/21 @ $9000 / month (Dec 2020 to Oct 2021);
 Deduction of USD 3,000, corresponding to the amount “given to me after signing my contract as pocket money”.
14. In its reply to the claim, the Respondent first contested the competence of FIFA and referred to art. 6 of the contract. In particular, the Respondent argued that the parties contractually agreed to first attempt a settlement in front of the Vietnam Football Federation (VFF), before the parties could submit the dispute to FIFA. In this regard, the Respondent held that the VFF was yet to render its proposal, therefore the Claimant should not have lodged the present claim. Finally, the Respondent argued that in line with art. 22 of the Regulations on the Status and Transfer of Players, the VFF was competent to hear the matter and thus requested for the claim to be rejected on this basis.
15. With regard to the merits of the case, the Respondent rejected the Claimant’s claim, referring to art. 2 par. 2.2 of the contract, according to which the Respondent had the right to terminate the contract upon the medical examination. In this context, the Respondent stated that after signing the contract, the Claimant passed medical tests on 5 November 2019 that “indicated that the player was torn along the right knee”, and that the Respondent could have terminated the contract but chose to “work” with him towards rehabilitation.
16. Furthermore, the Respondent considered that the Claimant breached the contract by submitting a complaint to the Vietnamese authorities on 7 January 2020, prior to the salary claimed actually falling due.
17. The Respondent also claimed that the player only attended a few training sessions since November 2019, and that he was only trying to benefit from the situation.
18. Finally, the Respondent stated that it will terminate the contract for prolonged absence in line with Vietnamese labour law.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the 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 first submitted to FIFA on 12 February 2020. Consequently, the 2019 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (March 2020 edition), the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Senegalese player and a Vietnamese club.
3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the grounds of art. 6 of the contract, according to which “(a)ny dispute and/or difference may arise between the Player and the Club during effectiveness of this Contract, will be settled by discussion or mutual reconciliation. In the case of any failure to resolve the dispute and/or difference within 15 (fifteen) days, the Parties have the rights to put forward the dispute to the VFF for settlement. In the case that VFF cannot settle the dispute of the two Parties, the two Parties have the rights to put forward to FIFA, the decision of the FIFA shall be the final and bidding”.
4. In this regard, the Chamber deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent 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 contract.
5. 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 contract at the basis of the present dispute contained a clear and specific jurisdiction clause.
6. Having examined the relevant provision, the Chamber came to the unanimous conclusion that art. 6 of the contract does not constitute a clear jurisdiction clause in favour of one specific deciding body, since it is not clear and exclusive, even stipulating that “the two Parties have the rights to put forward to FIFA”. In this context, the Chamber understood that the parties actually never clearly and undisputedly agreed upon a specific jurisdiction. Consequently, the Chamber 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.
7. In continuation, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (March 2020 edition) and considering that the present matter was submitted to FIFA on 12 February 2020, the January 2020 edition of said Regulations is applicable to the present matter as to the substance.
8. With the above having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.
9. In this respect, the Chamber firstly acknowledged that it was undisputed that the Claimant and the Respondent had signed an employment contract valid as from 1 November 2019 until
30 October 2021. In continuation, the Chamber noted that it was also undisputed that the Claimant was entitled, inter alia, to remuneration as set out at points I./ 2. and 3. above.
10. What is more, the Chamber noted that the Claimant had put the Respondent in default on 7 January 2020, requesting the payment of his salaries of December 2019 and January 2020.
11. Summarising the parties’ respective positions in this dispute, the members of the Chamber noted that the Claimant, on the one hand, claimed that the Respondent had unilaterally terminated the contract by not paying him his salaries of December 2019 and January 2020, as well as trying to convince him to mutually terminate the contract and not allowing him to access club’s facilities, whilst on the other hand, the Respondent affirmed that it was entitled to terminate the contract upon the Claimant’s medical examination of 5 November 2019. In this context, the Chamber also noted that the Respondent considered that the Claimant had breached the contract by submitting a complaint to the Vietnamese authorities on 7 January 2020, prior to the salary claimed actually falling due, and that the Claimant had only attended a few training sessions since November 2019.
12. In view of the foregoing, the Chamber established that the main issue to be analysed in the present case is whether the contract had in fact been unilaterally and prematurely terminated by one of the parties or not. Subsequently, the Chamber shall establish the financial and/or sporting consequences to be borne by the party found to be in breach of contract.
13. 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, 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.
14. Furthermore, the members of the Chamber deemed it appropriate to recall the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.
15. In this context, the Chamber noted that the Claimant deemed that the Respondent was responsible for the unilateral termination of the contract, by not paying him his salaries of December 2019 and January 2020, not allowing him to access club’s facilities and trying to convince him to mutually terminate the contract.
16. On the other hand, the Chamber thoroughly analysed the position of the Respondent. First, the Chamber noted that the Respondent claimed its right to terminate the contract, based on art. 2 par. 2.2 of the contract, which read as follows:
“The Player shall undergo promptly a complete physical/medical examination as when and required by the Club, at expense of the Club. In case for any reason the Player does not maintain the level of playing skillfulness and/or physical conditions at the satisfaction of the Club, the Club on the sole basis of the opinion of the Club’s Professional Council and Training Board has the right to unilaterally reduce the salary, the bonus and other compliments or terminate this Contract without having to compensate the Player for such early contract termination.”
17. In particular, the Chamber observed that the Respondent relied on medical tests passed by the Claimant on 5 November 2019, which indicated “that the player was torn along the right knee”. With the foregoing being said, the Chamber recalled that the Respondent had not terminated the contract.
18. Irrespective of the foregoing consideration, the Chamber wished to emphasise that on the basis of art. 18 par. 4 of the Regulations and the Chamber’s respective jurisprudence, the validity of a contract may not be subject to successful medical examinations. In this regard, the Chamber underlined that a club wishing to employ a player has to exercise due diligence and carry out all relevant medical examination prior to entering into an employment contract.
19. Furthermore, the Chamber observed that the Respondent neither contested the outstanding amounts due to the Claimant nor the restrictions imposed on him to use the club’s facilities.
20. In light of the very specific circumstances of the present matter and even though none of the parties appears to have terminated the contractual relationship in writing, the Chamber was of the opinion that both parties were no longer interested in, or in a position to uphold a continuation of the contractual relationship. In this regard, the Chamber underlined that it appears, based on the information and documentation on file, that the parties stopped executing the contract following the Claimant’s default letter dated 7 January 2020.
21. Consequently, the Chamber decided that the contract had been tacitly terminated, by the parties’ actions, on 7 January 2020.
22. In these circumstances, the members of the DRC highlighted that, at the moment of the termination of the contract, i.e. 7 January 2020, only the amount of USD 3,000 had been paid to the Claimant.
23. In this context, the Chamber reverted to the Claimant’s claim in which he requested the “full due” of the contract, as follows:
 USD 85,000 as the “bonus / contract signing fee 2019/20”;
 USD 85,000 as the “bonus / contract signing fee 2020/21”;
 USD 102,000 as the “salary 2019/20 @ $8500 / month (Nov 2019 to Oct 2020)”;
 USD 1,700 as the “unpaid salary Nov 2020 @ 20% (holidays)”;
 USD 99,000 as the “salary 2020/21 @ $9000 / month (Dec 2020 to Oct 2021);
 Deduction of USD 3,000, corresponding to the amount “given to me after signing my contract as pocket money”.
24. First of all, the Chamber considered relevant to emphasise that the contract was tacitly terminated, by the parties’ actions, thus meaning that the parties had not committed any breach of the contract, which could justify financial and/or sporting consequences resulting thereof. Consequently, the Chamber already decided at this stage that no compensation for breach of contract shall be awarded to the Claimant.
25. Subsequently, the Chamber noted that 50% of the “contract fee”, in the total amount of USD 85,000, was supposed to be paid “at the beginning of the season” by the Respondent. Accordingly, the Chamber decided that the Claimant was entitled to receive the amount of USD 42,500, i.e. 50% of said amount, as outstanding remuneration.
26. Moreover, the Chamber observed that the Respondent had only paid the Claimant the amount of USD 3,000 as monthly salary since the beginning of the contractual relationship. Taking into account that the contract was terminated on 7 January 2020, the Chamber decided that the Claimant was also entitled to the amounts of USD 5,500, corresponding to the salary of November 2019, minus USD 3,000 paid by the Respondent, USD 8,500 as the salary of December 2019 and EUR 1,920 as the salary of January 2020, calculated pro rata until the date of termination.
27. Consequently, in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay the Claimant the total amount of EUR 58,420 as outstanding remuneration.
28. Furthermore, the DRC 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.
29. 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.
30. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant, 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.
31. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.
32. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Idrissa Sega Cisse, is admissible.
2. The claim of the Claimant is partially accepted.
3. The Respondent, FC Thanh Hoa, has to pay to the Claimant, within 45 days as from the date of notification of this decision, the amount of USD 58,420.
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 email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 3. above.
6. The Respondent 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 due in accordance with point 3. above is 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 amount is paid.
9. In the event that the amount due in accordance with point 3. above 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 appeal procedure:
According to article 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

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