F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 4 November 2020

Decision of the

DRC Judge

passed on 4 November 2020,

regarding an employment-related dispute concerning the player Weslie Lesleon John

BY:

Alexandra Gómez Bruinewoud (Uruguay/Netherlands), DRC Judge

CLAIMANT:

Weslie Lesleon John, Trinidad and Tobago

RESPONDENT:

FK Riteriai, Lithuania

represented by Mr Marius Devyžis and Mr Martynas Kalvelis

I. FACTS OF THE CASE

1. On 3 March 2020, a Trinidadian player Wesley Lesleon John (hereinafter: the Claimant or the player) and the Lithuanian club FK Riteriai (hereinafter: the Respondent or the club) concluded a sports activity contract (hereinafter: the contract) valid from the date of signature, 3 March 2020 until 30 November 2021.

2. In accordance with clause 5.1 of the contract, the Claimant was entitled to a monthly salary

of EUR 1,500 payable by the 17th day of the next calendar month.

3. According to clause 9.1 of the contract, the contract shall enter into force:

i) after a player’s medical examination; and

ii) when club receive player ITC (International transfer certificate)

4. On 8 March 2020, the first match day of the Lithuanian top division was scheduled and the player was confident that after his medical examinations, he would be able to participate as part of the first team squad. However, the Respondent informed him that he had to pass an additional medical examination.

5. On 16 March 2020, the Claimant and Respondent concluded a Supplementary Agreement to the Contract (hereinafter: the Supplementary Agreement) and as per the Claimant, due to the state of quarantine declared in the Republic of Lithuania on 16 March 2020, the Respondent’s management insisted on the signature of the Supplementary Agreement to the contract.

6. Accordingly, clause 1 of the Supplementary Agreement stipulated that the conditions necessary for the contract to come into legal force as stipulated in clause 9.1 of the contract has not yet taken place. It further stipulated in clause 2, that the contract shall come in force after a report permitting the player to conduct professional sport activity is received following a thorough medical examination of the player.

7. According to clause 3 of the Supplementary Agreement, the medical examination would take place after the termination of the state of quarantine in the territory of the Republic of Lithuania. In this respect, the Claimant highlighted the following in his claim:

“Being confident that this is just formality I had no problems with my health at my former clubs and I would be compensated with remunerations from the date of the Contract signature, I signed the above-mentioned document.”

8. As per the Claimant, after the Respondent started the preparations for return to play on 30 May 2020, he was not invited to join the squad and had to wait for further directions from the Respondent.

9. In this context, the Claimant contacted the Respondent via WhatsApp and in its reply, the Respondent indicated that it did not recognise the validity of the contract and that furthermore the local migration authorities rejected the request to grant a working visa to the Claimant.

10. On 23 June 2020, the Claimant, send a request and default letter to the Respondent to clarify the Respondent’s position regarding the contract execution and to confirm his employment status by 26 June 2020.

11. The aforesaid request and default letter however remained unanswered and the Claimant reiterated his request in a second letter to the Respondent, dated 29 June 2020. According to the Claimant, the second letter went unanswered as well.

12. On 6 July 2020, the Claimant sent a third default letter to the Respondent.

13. On 9 July 2020, the Respondent replied sustaining, inter alia, the following that:

i) the Claimant was hiding health problems before the contract signature;

ii) the contract had not yet come into legal force; and

iii) due to the state of quarantine and related restrictions in the Republic of Lithuania there is not an arrangement with respect to the additional medical examination in place for the Claimant

14. On 10 July 2020, the Respondent contacted the Claimant inviting him to have a meeting with the new director, Mr. Vladimiras Buzmakovas, with the outcome being that that both parties need to find a solution to resolve the issues and the Claimant indicated that he would think about it and provide the Respondent with an official letter.

15. On 13 July 2020, the Respondent sent a WhatsApp message to the Claimant stating the

following:

“Do you have any idea how we can work together or terminate contract?”

16. In this regard, according to the Claimant he was confused “as from one side the Respondent stated that the contract did not come into force, but from another requests to terminate the contract”.

17. On 13 July 2020, the Claimant sent a final default letter to the Respondent, providing the

latter with a 4 days’ deadline, i.e. until 17 July 2020, to arrange the health examination of a cardiologist and to provide him with a report of it, if not he will have to leave the Respondent’s disposal in order to find a new club to continue his professional career.

18. On 17 July 2020 the Respondent sent a reply, confirming that from the Respondent’s point of view the contract did not come into legal force yet and as to the additional medical examination, the situation remained the same as the Respondent refers on the epidemiological situation due to which the visit to the appropriate specialist could not be arranged.

19. In this context, on 4 August 2020, the Claimant lodged a claim against the Respondent before

FIFA, seeking the following relief:

i) that the statement of claim of the Claimant, is accepted, in full;

ii) to confirm that the contract between the Respondent, and the Claimant, was valid and binding for both parties;

iii) to establish that the Respondent, has terminated the contract tacitly by their own actions without just cause;

iv) to condemn the Respondent, to pay the Claimant, a total amount of EUR 31,403.23 from which:

– EUR 6,725.81 (as the outstanding due payments (salaries for March until July 2020); and

– EUR 24,677.42 (as the total compensation for breach of the contract)

v) to award additional compensation in amount up to EUR 9,000, if the mitigated compensation would be less than residual value of the contract;

vi) to impose cumulative sanctions against the Respondent, in form of a fine and ban from registering any new players, either nationally or internationally for two entire and consecutive registration periods;

vii) condemn the Respondent, to pay the Claimant, interest at the rate of 5% per year from amount of each due salary since the moment the above payments became outstanding.

20. In its reply, the club stated that upon arrival of the player, he was required to complete a health survey on his state of health, previous injuries and health issues according to which the player denied having any health issues whatsoever.

21. The club maintained that on 3 March 2020, the parties signed the contract and pursuant to clause 9.1, the contract shall enter into force after the player’s medical examination. The club stressed that the player himself did not contest on the insertion of clause 9.1 and completely agreed stating his urge to have his health condition examined before actually committing to the contract. Thus, the parties agreed to include clause 9.1 stipulating a provision on the delayed entry into force of the contract.

22. The club sustained that the report of the Lithuanian Sports Medicine Centre, dated 5 March 2020, showed alarming indications on potential heart health issues of the player and ’Imminent consultation with cardiologist was prescribed to the player’.

23. On 12 March 2020, the Cardiology and Angiology Centre of Vilnius University Hospital Santaros Clinics conducted an examination of the player, where “significant myocardium hypertrophy of the left ventricle was reported”. Therefore, the Club was not in any moral or legal position to engage the player for any sporting activities before clearing all possible doubts and concerns over the health of the player by the prominent cardiology experts. However, “the subsequent examination of the player was (and still is) not possible due to impact of COVID-19 outbreak.”

24. The Club further stated that the Decision No. 207 of the Government of the Republic of Lithuania announced the state of quarantine in the territory of Republic of Lithuania.

25. Moreover, on 12 March 2020, the Lithuanian Football Federation issued a statement informing that all football competitions, including “A Lyga” competitions were suspended due to the COVID-19 outbreak. Due to restrictions imposed by the Decision No. 207, the club was unable to proceed with subsequent medical examination of the Player following 12 March 2020 reports and prescriptions.

26. Furthermore, the club highlighted that in accordance with clause 3 of the Supplementary Agreement, the medical examination of the player in order to receive the report shall take place after the termination on state of quarantine in the territory of Republic of Lithuania announced by the Decision No 207.

27. The club further pointed out that according to clause 4 of the Supplementary Agreement, the player confirmed that the medical examination stipulated in clause 3 shall be conducted under the request and interest of the player himself in order for him to ascertain that he is capable to conduct professional sporting activities. Therefore, the Supplementary Agreement was clearly signed due to common understanding of the parties over concerns related to the situation of the health of the player.

28. The club explained that, on 31 May 2020, the date on which the club returned to conduct sporting activities, it could not field the player for training sessions or competition, due to impossibility for the club to arrange further medical examination for the player during quarantine period.

29. Concerning the player’s departure on 17 July 2020, the club affirmed that neither the player nor the club had terminated the contract since it was never in legal force in the first place.

30. The club further held that even in case the DRC deems that the contract signed on 3 March 2020 was binding from the moment it was signed by the parties, the contract ceased to be in legal force when the player and the club concluded the Supplementary Agreement until the conditions set-forth in the Supplementary Agreement are met.

31. Regarding the alleged tacit termination of the contract by the club, it stated that it is “completely false”, in its opinion, the player attempts to hide the fact that neither party had actually terminated the contract even if it is deemed binding. It added that the contract was not in force and therefore neither party could terminate it tacitly nor actively.

32. Moreover, the club held that the player failed to prove that the club tacitly terminated the contract. The player also failed to prove that the club had tacitly confirmed unilateral termination of the contract by the player due to just cause even in the event the contract was binding. Notwithstanding the player claims he had a ground to terminate the contract with just cause, there is no evidence whatsoever that the player had issued a notice of termination of contract and presented it to the club. Therefore, in case the DRC deems the contract as binding, it should be concluded that the contract was terminated by mutual tacit agreement of the parties.

33. In its conclusion, the club requested to reject the claim of the claimant.

34. After having invited to do so, the player informed us about his current employment situation. The latter, on 13 August 2020, concluded an “Amateur football contract” with the Latvian club Jelgava, valid as from the date of signature until the “end of the current season”. According to the contract and the information contained in the TMS, no compensation has been agreed between the parties.

II. CONSIDERATIONS OF THE DRC JUDGE

1. In relation to the competence, the Dispute Resolution Chamber (DRC) Judge (hereinafter also referred to as the DRC judge) analysed whether she was competent to deal with the case at hand. In this respect, she took note that the present matter was submitted to FIFA on 21 July 2020. Consequently, the 2020 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 DRC Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, she is competent to deal with employment-related disputes with an international dimension between a player and a club.

3. The DRC judge analysed which edition of the regulations should be applicable as to the substance of the matter. In this respect, she confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 21 July 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC Judge continued by acknowledging the above-mentioned facts as well as the arguments and documentation contained in the file in relation to the substance of the matter. However, she emphasized that in the following considerations she will refer only to the facts, arguments and documentary evidence, which she considered pertinent for the assessment of the matter at hand. In particular, the DRC judge recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. Having said this, the DRC judge proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. The DRC judge noted and acknowledged that the Claimant and Respondent concluded an employment contract on 3 March 2020 valid as from the date of signature until 30 November 2020 in terms of which the Respondent undertook to pay the Claimant a monthly salary of EUR 1,500.

7. Moreover, on 5 and 12 March 2020, the Claimant underwent a medical examinations in Latvia, on the basis of which it was concluded that the Claimant had a potential heart issue, that would need a further medical examination.

8. The DRC judge further acknowledged that on 16 March 2020, a Supplementary Agreement to the Contract was concluded between the Claimant and Respondent, based on which the contract would only come in force after a thorough medical examination was made, allowing the Claimant to perform professional sports activity.

9. After the third medical examination – scheduled to have taken place in Latvia – could not be made as a result of the fact that due to the COVID-19 outbreak, it was not possible for the Claimant to travel to Latvia, the Respondent remained of the opinion that the contract never came into force.

10. Subsequently, the DRC judge noted that the Claimant lodged a claim before FIFA, claiming outstanding remuneration in the amount of EUR 6,726, as well as compensation for breach of contract in the total amount of EUR 24,677.42, plus additional compensation in the amount of EUR 9,000, as well as 5% interest p.a. as from the due dates.

11. The DRC judge further noted that the Claimant maintained that the contract signed between the parties on 3 March 2020 has to be considered valid and binding and that the club “tacitly” terminated it without just cause.

12. What is more, the DRC judge noted that the Respondent for its part rejected the Claimant’s claim sustaining that the conditions required for the contract to come into legal force was not met, therefore the contract was never binding and valid between the parties. Furthermore, the Respondent held that the player failed to prove that the club tacitly terminated the contract.

13. The DRC judge stated that, in view of these contradictory positions, it first had to analyse when the contract was terminated and by which party, and subsequently, whether said termination was made with or without just cause in order to determine whether a party is accountable for outstanding payments and/or compensation.

14. In this context, the DRC judge referred to the contents of art. 18 par. 4 of the Regulations, which stipulates “the validity of a contract may not be made subject to a positive medical examination and/or the granting of a work permit”.

15. The DRC judge recalled the undisputed sequence of the facts in the present matter: on 3 March 2020, the parties concluded the contract and only on 5 and 12 March 2020, medical examinations of the Claimant took place. After the conclusion of said medical examinations was not positive and indicated that there was a medical issue with the Claimant’s heart, the parties apparently concluded - on 16 March 2020 – a supplementary agreement, on the basis of which the contract would only come in force once a further medical examination would have proven that the Claimant was capable of playing professional sports football.

16. The DRC judge stated that it had remained uncontested that the medical examination was carried out after the parties had signed the initial contract on 3 March 2020.

17. The DRC judge then drew its attention to the argument of the Respondent that the contract was subject to the positive outcome of the medical examination, in clear contradiction to the aforementioned art. 18 par. 4 of the Regulations.

18. In this regard, it must be highlighted that according to the DRC judge, it is a club’s obligation to organise a medical examination before signing the contract. If it does not follow this fundamental principle and takes the initiative to sign the contract prior to being satisfied of the player’s health and physical conditions, it does so at its own risk and therefore the contract will in principle be considered valid and binding. It is the engaging club’s duty to ensure for itself that the player they intend to contract is in good physical condition.

19. In particular, under the Regulations, the condition of a successfully passed medical examination imposed by the club for the enforcement of an employment contract is null and void, and should be considered as a non-written clause. However, this nullity does not affect the validity of the entire contract. The duties of the parties towards each other under the employment contract remain valid and binding.

20. What is more, the DRC judge referred to the fact that the contents of art. 18 par. 4 is of mandatory nature and cannot be contractually amended or circumvented. The clear rule, which is strictly and consistently applied by the deciding authorities, ensures a high degree of legal certainty. Equally, it aims at fostering the contractual stability of employment contracts and thus avoiding disruptions during the football season.

21. Based on the aforementioned considerations, the DRC judge concluded that the contract, signed on 3 March 2020, contained all essentialia negotii in order to validly establish an employment relationship between the parties, and that only afterwards, a medical examination had taken place, showing that the Claimant might not be suitable to play professional football. The DRC judge was of the clear opinion that the Respondent had taken this action at its own risk and which cannot influence the validity of the concluded contract.

22. As a result, the DRC judge decided to not upheld the Respondent’s argument that that the contract ceased to be in legal force, until the conditions set-forth in the Supplementary Agreement are met and in accordance with which, the medical examination would take place after the termination of the state of quarantine in the territory of the Republic of Lithuania.

23.In light of the foregoing, the DRC judge considered the contract concluded on 3 March 2020 to be valid and binding between the parties.24.As to the effective date of termination of the contract, the DRC judge deemed that there was no clear point in time on which one of the parties had properly terminated the employment relationship. Based on the specific circumstances of the case, more specifically the fact that the Respondent did not undertake any actions towards the Claimant in reply to his letters, nor did it pay him his monthly remuneration, the DRC judge deemed that the Respondent had tacitly terminated the contract on 18 July 2020 (the day after the last deadline given by the player in his correspondence dated 13 July 2020 had expired). Such tacit unilateral termination of the contract constitutes a breach of contract without just cause in the opinion of the DRC judge. Therefore, the Respondent should be held liable for the consequences of such unilateral termination.25.First of all, the DRC judge indicated that the Respondent must fulfill its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. the amount of EUR 6,726, consisting of one partial outstanding monthly salary of EUR 1,403 for March 2020, as well as 3 monthly salaries of EUR 1,500 each for the months of April, May and June 2020 and a partial outstanding salary in the amount of EUR 823 for July 2020.26.What is more, based on its longstanding jurisprudence as well as the Claimants request, the DRC judge decided to award 5% interest p.a. on the abovementioned amounts as from their respective due dates.27.In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract.28.In this context, the DRC judge outlined that, in accordance with said provision, 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.29.In application of the relevant provision, the DRC judge held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

30. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the DRC judge took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the DRC judge pointed out that at the time of the termination of the employment contract on 18 July 2020, the contract was supposed to run until 30 November 2021. Consequently, taking into account the financial terms of the contract, the DRC judge concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to EUR 24,677.42 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

31. In continuation, the DRC judge remarked that following the early termination of the employment contract at the basis of the present dispute the Claimant had found new employment with two clubs. In this respect, it turns out that the Claimant indeed signed a new employment contract with the Latvian club Jelgava, however that under said contract, the player was not entitled to any remuneration. Consequently, the DRC judge decided that no mitigation had to be take into account.

32. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of EUR 24,677.42 to the Claimant as compensation for breach of contract without just case, which is considered by the DRC judge to be a reasonable and justified amount as compensation.

33. Finally, in line with the Dispute Resolution Chamber’s longstanding jurisprudence, the DRC judge decided to award 5% interest p.a. on the amount of EUR 24,677.42 as from 21 July 2020, the date of the claim, until the effective date of payment.

34. In conclusion, the DRC judge decided that the Respondent is liable to pay the total amount of EUR 31,430.42 to the Claimant, consisting of the amount of EUR 6,726 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract without just cause by the Respondent and the amount of EUR 24,677.42 corresponding to compensation for breach of contract without just cause.

35. The DRC judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

36. Moreover, the DRC judge 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.

37. In this regard, the DRC judge 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.

38. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amounts 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.

39. Finally, the DRC judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant, Weslie Lesleon John, is partially accepted.

2. The Respondent, FK Riteriai, has to pay to the Claimant, the following amounts:

- EUR 6,726 as outstanding remuneration plus 5% interest p.a. calculated as follows:

a. over the amount of EUR 1,403 as of 18 April 2020 until the date of effective payment;

b. over the amount of EUR 1,500 as of 18 May 2020 until the date of effective payment;

c. over the amount of EUR 1,500 as of 18 June 2020 until the date of effective payment;

d. over the amount of EUR 1,500 as of 18 July 2020 until the date of effective payment;

e. over the amount of EUR 823 as of 18 August 2020 until the date of effective payment;

- EUR 24,677.42 as compensation for breach of contract without just cause plus 5% interest p.a. as from 21 July 2020 until the date of effective payment

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amounts.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due, plus interest as established above are not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amounts are paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amounts as per in this decision are 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 the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED 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) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

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