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 17 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 January 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stefano Sartori (Italy), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Modibo Maiga, Mali,

represented by Mr Archad Burahee and Mr Daniel Muñoz Sirera

as Claimant

against the club,

Buriram United, Thailand,

represented by Mr Menno Teunissen and Mr Thomas Spee

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 4 January 2019, the Malian player, Modibo Maiga (hereinafter: Claimant) concluded an employment contract (hereinafter: the contract) with the Thai club Buriram United (hereinafter Respondent), valid as from 1 January 2019 until 30 November 2019.

2. In accordance with clauses 1-4 of the contract, the Claimant was inter alia entitled to the following:

a) USD 32,727 per month, payable “on the last business day of each month”;

b) Thai Baht (THB) 500 (approx. USD 16) “per training day or match day”;

c) “Match win incentive at the Club’s sole discretion”.

3. By means of section 2.12 of the employment contract, the Claimant was entitled to the following “Match Bonus Scheme”:

4. Clause 2.12 further stipulated:

a) “In case of “Equal or Lost”, the next match bonus will be recalculated and based on Pack A and run by results and score made;

b) Bonus will be paid in [THB]”.

5. The employment contract further included an “Addendum of Employment Contract” (hereinafter: Addendum). By means of the Addendum, the Claimant was entitled to the following:

a) USD 70,000 “in January 2019”;

b) USD 70,000 “in July 2019”;

c) USD 50,000 if the Claimant “participates in more than 25 games in Thai League season 2019”;

d) USD 50,000 of the Claimant “scores more than […] 25 goals in Thai League season 2019 and AFC Champions League 2019”.

6. According to Article 6 of the contract, entitled “Termination without sporting just cause but with compensation”, provided for the following: “if the [Respondent] terminates the contract without just cause it shall pay a compensation of two months’ worth of salary to the [Claimant]. The [Claimant] who has terminated his contract without just cause shall in all cases pay a compensation of four months’ worth of salary to the [Respondent]”.

7. On 2 April 2019, the Respondent prepared a termination agreement, which inter alia held that “by way of compensation for the early termination and in accordance with article 6 of the employment contract […] the [Respondent] shall pay to you a once-only net sum of USD 60,000 within 5 April 2019 […] Save for the termination payment you shall be entitled to no further sums from the [Respondent]”.

8. On 4 April 2019, the Respondent informed the Claimant in writing that he is “no longer a football player of the [Respondent] and should be addressed as a “third party” (meaning: person not affiliated with the club) […] Please note that any intention to enter the club ground after this termination by your part has to be considered a breach of national Thai law. In this type of cases the Club will be obliged to contact the local authorities for trespassing into private immovable property belonging to another in order to disturb the peaceful possession”.

9. On 9 April 2019, the Claimant informed the Respondent in writing that he disagreed with the terms under which the Respondent had terminated the contract, arguing that Article 6 of the contract “contravenes the general principle of proportionality”. In said letter, the Claimant requested the payment of compensation in the amount of USD 205,025 plus 5% interest p.a. by 20 April 2019.

10. On 2 May 2019, the Claimant wrote another letter to the Respondent, stating that the amount of USD 205,025 was not paid to him, providing the club until 12 May 2019 to remedy the situation.

11. On 12 May 2019, the Respondent responded to the Claimant in writing, referring to the principle of pacta sunt servanda and arguing that the contract termination was valid.

12. On 23 July 2019, the Claimant lodged a claim against the Respondent for termination of contract without just cause, inter alia requesting USD 276,942 as compensation.

13. The Claimant further requested the imposition of sporting sanctions against the Respondent.

14. According to the Claimant, the Respondent only referred to Article of 6 of the contract as a justification for the contract termination, without providing any further reasons.

15. In this context, the Claimant argued that Article 6 of the contract should be deemed null and void for being contrary to the general principles of proportionality and equal treatment.

16. With regard to the compensation for termination of contract without just cause, the Claimant firstly explained that the value of the employment equalled USD 504,417, consisting of the following unconditional salaries:

a) 11 monthly salaries of USD 32,727 = USD 359,997;

b) THB 500 per training/match day corresponds to “47 weeks, counting 6 days of training/match day per week” = THB 141,000 = USD 4,420 “considering the conversion rate of 1 USD = THB 31.90”;

c) USD 70,000 to be received in January 2019;

d) USD 70,000 to be received in July 2019.

17. Having said this, the Claimant acknowledged having received the total amount of USD 228,181 from the Respondent corresponding to the monthly salaries of January, February and March 2019, amount USD 70,000 due “in January 2019”, as well as USD 60,000 as stipulated in the Respondent’s termination letter.

18. Therefore, as per the Claimant, the remaining value of the contract equalled USD 276,236.

19. Furthermore, the Claimant referred to the Respondent’s “Match Bonus Scheme” (cf. III.3.) and argued that the Respondent achieved 4 consecutive wins between 10 March 2019 and 30 March 2019 in which the Claimant participated as follows:

20. Thus, according to the Claimant, he was entitled to the amount of THB 22,500 as match bonus, which equalled USD 706 “as per the conversion rate of 22 April 2019”.

21. Given the above, the Claimant held that the amount of compensation due to him corresponded to USD 276,942.

22. In reply to the Claimant’s claim, the Respondent firstly argued that “given [the Claimant’s] experiences in the international football market [the Claimant] demanded a flexible contract, which would leave the possibility open for an early termination”.

23. With regard to Article 6 of the contract, the Respondent underlined that it had been “explicitly negotiated and freely agreed upon by both parties [given that] the clause is signed by both the [Claimant] as the [Respondent]”.

24. According to the Respondent, in early April 2019, “both parties came to an agreement to terminate the employment”.

25. In this context, the Respondent held that the contract termination “is also valid under the FIFA Regulations and the Swiss law as, in its jurisprudence, the DRC accepts such clauses to be valid provided they have been negotiated and set forth fair terms, which is applicable to the case at hand”.

26. Moreover, as per the Respondent, “the difference between a compensation payment of 2 months and 4 months value is not disproportionate […] given the fact that the investment of the [Respondent] and the economic risk which the [Respondent] is undertaking upon a termination by the [Claimant] (e.g. the cost of contracting a new player mid-season) is far higher than the cost for the [Claimant]”.

27. Given the above, the club requested FIFA to dismiss the claim lodged by the Claimant.

28. On 13 December 2019, the Claimant informed FIFA that he remained unemployed for the period of 2 April 2019 until 30 November 2019.

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 23 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 combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players 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 Malian player and a Thai club.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2018) and considering that the present claim was lodged on 23 July 2019, the 2019 edition of the 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 and arguments as well as the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber recalled that the Claimant and the Respondent signed an employment contract which was valid as from 1 January 2019 until 30 November 2019. The Chamber acknowledged that, in accordance with the employment contract, the Respondent was obliged to pay to the Claimant, inter alia, a monthly salary of USD 32,727, two instalments of USD 70,000 each to be paid in January 2019 and July 2019 respectively, as well as a bonus of THB 500 “per training day or match day”.

6. The DRC further took into consideration that, after preparing a termination letter on 2 April 2019, the Respondent proceeded to unilaterally terminate the contract with the Claimant on 4 April 2019. Given the above, the Chamber firstly unanimously concluded that the employment contract was unilaterally terminated by the Respondent on 4 April 2019.

7. In continuation, the DRC recalled that the Claimant lodged a claim before FIFA for breach of contract, requesting to be awarded USD 276,942 as compensation for breach of contract.

8. In light of the above, the Chamber established that the primary issue at stake is determining as to whether the Respondent had a just cause to terminate the contract with the Claimant on 4 April 2019 and to determine the consequences thereof. In this respect, the Chamber deemed it essential to make a brief recollection of the facts as well as the parties’ main arguments and the documentation on file.

9. With regard to the Claimant’s arguments, the Chamber noted that, as per the Claimant, the Respondent failed to provide any reasons or justifications for the contract termination. Consequently, the DRC educed, the Claimant concluded that the Respondent terminated the contract without just cause.

10. In continuation, the members of the DRC analysed the arguments brought forward by the Respondent, who held that it terminated the employment contract pursuant the termination clause stipulated in Article 6 of the contract, but without providing any further reasons or justifications.

11. Consequently, given the lack of any arguments brought forward as to why it unilaterally terminated the employment contract with the Claimant, as well as its well-established jurisprudence, the DRC unanimously concluded that the Respondent terminated the employment contract on 4 April 2019 without just cause.

12. That said, the Chamber concluded that the Respondent is to be held liable for the early termination of the employment contract without just cause by the Respondent and should therefore bear the consequences of its unjustified breach of the employment contract.

13. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract payable by the Respondent to the Claimant in the case at stake. In doing so, the members of the Chamber first recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

14. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract.

15. In this regard, the Chamber noted that, in accordance with article 6 of the contract, “if the [Respondent] terminates the contract without just cause it shall pay a compensation of two months’ worth of salary to the [Claimant]. The [Claimant] who has terminated his contract without just cause shall in all cases pay a compensation of four months’ worth of salary to the [Respondent]”.

16. In continuation, and with regard to article 6 of the contract, the DRC took into account the Claimant’s position, who held that said article should be deemed null and void for being contrary to the general principles of proportionality and equal treatment. Similarly, Chamber recalled that the Respondent had held that such a clause is valid under FIFA Regulations, as well as its jurisprudence.

17. After a careful analysis of the abovementioned provision, the members of the Chamber agreed that said article does not grant the same rights to the Claimant and the Respondent. In other words, as per the Chamber, article 6 of the contract was considered to not be balanced to the equal repartition of the rights of the parties. Thus, given that said provision is clearly to the benefit of the Respondent, the DRC decided not to take it into consideration in the determination of the amount of compensation.

18. As a consequence, the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the DRC emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter.

19. In order to estimate the amount of compensation due to the Claimant in the present case, the Chamber first turned its attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract(s), which criterion was considered to be essential. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

20. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 4 April 2019, until 30 November 2019, and concluded that the Claimant would have received USD 271,816 in total as remuneration had the contract been executed until its expiry date.

21. Consequently, the Chamber concluded that the amount of USD 271,816 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

22. In continuation, the DRC acknowledged that the Claimant’s request for compensation included USD 4,420 corresponding to training and match day bonuses. Having said this, the Chamber failed to understand how training and match day bonuses could be included in a compensation request. Consequently, the DRC decided not to take into account this part of the Claimant’s claim,

23. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for termination of contract with just cause in connection with the player’s general obligation to mitigate his damages.

24. Having said this, the DRC noted that according to the information on file, the Claimant remained unemployed for the period of 4 April 2019 until 30 November 2019.

25. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of USD 271,816 to the Claimant as compensation for breach of contract.

26. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

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Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Modibo Maiga, is partially accepted.

2. The Respondent, Buriram United, has to pay to the Claimant compensation for breach of contract in the amount of USD 271,816.

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

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

5. The Respondent shall provide evidence of payment of the due amount in accordance with III.2. to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due in accordance with III.2. 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).

7. The ban mentioned in III.6. will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the aforementioned sum 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.

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Note related to the publication:

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

Note related to the appeal procedure:

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS.

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer