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 9 December 2020

Decision of the

DRC Judge

passed in Zurich, Switzerland, on 9 December 2020,

regarding an employment-related dispute concerning the player Ryo Fujii

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

RYO FUJII, Japan

Represented by Mr. Igantius Michael Ingles

RESPONDENT:

GLOBAL FC, Philippines

I. FACTS

1. On 25 February 2020, the Japanese player Ryo Fujii (hereinafter: the player or Claimant) and the Philippine club Global FC (hereinafter: the club or Respondent) signed an employment agreement valid between 4 March 2020 and ”31” November 2020, according to which the player was entitled to receive a monthly salary of GBP 3,000.

2. Furthermore, the contract stipulates that the player was entitled to free medical benefits, specialist and dental treatment, as well as condominium accommodations.

3. According to the player, on 23 July 2020, the club in a news article in a newspaper, committed itself to pay the players of the club their outstanding remuneration within 10 days. The player further indicates that this did eventually not happen.

4. On 13 August 2020, the club sent the player a release certificate, which according to the player constitutes as a unilateral termination of the contract without just cause by the club.

5. On 14 August 2020 and 1 September 2020, the player put the club in default for the total amount of GBP 22,950, providing the club both times a 7 days’ deadline to remedy its default, however again to no avail.

6. On 3 October 2020, the player lodged a claim against the club, claiming the following amounts:

Outstanding remuneration in the total amount of GBP 22,950, as well as 6% interest p.a. as of the date of Global’s receipt of Mr. Fujii’s first demand letter, specified as follows:

- GBP 3,000 as outstanding salary for March 2020;

- GBP 3,000 as outstanding salary for April 2020;

- GBP 3,000 as outstanding salary for May 2020;

- GBP 3,000 as outstanding salary for June 2020;

- GBP 3,000 as outstanding salary for July 2020;

- GBP 1,000 as outstanding salary for August 2020;

- GBP 1,000 as “free medical benefits”;

- GBP 1,000 specialist and dental treatment;

- GBP 4,950 as “condominium accommodations”.

Compensation for breach of contract in the total amount of USD 10,500, as well as 6% interest p.a. as of the date of the DRC’s decision:

- GBP 10,500 as residual value of the contract in the period between August 2020 and November 2020.

Unspecified additional compensation as per art. 17 par. 1 of the FIFA Regulations.

7. According to the player, he did not receive any salary payment at all during the time he was under contract.

8. Despite having been invited to do so, the Respondent failed to answer to the Claimant’s claim.

9. After the unilateral termination of the contract, the player remained unemployed.

II. CONSIDERATIONS OF THE DRC JUDGE

1. First of all, the DRC Judge (hereinafter also referred to as DRC judge) analysed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the June 2020 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 DRC Judge referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC Judge is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the present one, which involves a Japanese player and a Philippine club.

3. In continuation, the DRC Judge analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the DRC Judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering the date when the claim was lodged, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the DRC Judge 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 DRC Judge 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.

5. First of all, the DRC judge acknowledged that, on 25 February 2020, the Claimant and the Respondent had concluded an employment contract valid as from 4 March 2020 and “31” November 2020.

6. The DRC judge further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the total amount of GBO 33,450, asserting that the Respondent had not fulfilled its contractual obligations towards him. More specifically, the Claimant indicated that the Respondent had not fulfilled any of its contractual obligations during the validity of the contract and was therefore in breach of the contract.

7. Subsequently, the DRC judge noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the DRC judge was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

9. In this context, the DRC judge acknowledged that it had to examine whether the reasons put forward by the Claimant could justify the conclusion that the termination of the contract in the present matter was made by the club without just cause.

10. In this respect, the DRC judge was eager to emphasise that from the information in the file, it turned out that the Respondent did not make any payment to the Claimant during the employment relationship. What is more, the DRC judge noted that on 13 August 2020, the Respondent issued a release certificate to the Claimant, by means of which the player was released from his contractual obligations.

11. In view of the above, the DRC judge was of the clear opinion that by unilaterally issuing a release certificate to the Claimant, without any further explanation or argumentation, after previously not having paid any of the salaries the Claimant was entitled to, the Respondent had effectively terminated the employment contract with the player on 13 August 2020, without exploring any other option to continue the employment relationship with the Claimant. The DRC judge was of the opinion that this would have been an option the Respondent should have explored, given the fact that the termination of a contract should always be the ultima ratio.

12. On account of the above, the DRC judge decided that the Respondent had no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 13 August 2020. Consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause.

13. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent.

14. First of all, the DRC judge concurred 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”.

15. 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 GBO 16,000, consisting of five monthly salaries of GBP 3,000 each (for the period between March and July 2020) and one partial salary of GBO 1,000 for August 2020.

16. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of GBP 15,000 as of 14 August 2020 until the date of effective payment and on the amount of GBP 1,000 as of 3 October 2020 until the date of effective payment.

17. What is more, the DRC judge concluded that the amounts claimed as ‘free medical benefits’, ‘specialist and dental treatment’ and ‘condominium accommodations’ are to be rejected, in view of the fact that the Claimant failed to provide any evidence that he effectively incurred costs as to these aspects. Moreover, the DRC judge noted that the respective article in the contract about accommodation allowance only obliged, the Respondent to provide accommodation the player, and does not constitute the payment of a fixed amount.

18. 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.

19. 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.

20. 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.

21. 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 13 August 2020, the contract and the supplementary agreement would still run until “31” November 2020. Consequently, taking into account the financial terms of the contract as well as the claim of the Claimant, 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 GBP 10,500 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

22. In continuation, the DRC judge remarked that following the early termination of the employment contract at the basis of the present dispute, the Claimant informed FIFA that he had remained unemployed and was therefore not able to mitigate his damages.

23. It follows from the fact that the Claimant had remained unemployed, that the DRC judge decided that no additional compensation could be awarded to the Claimant, as the conditions of art. 17 par. (ii) of the Regulations are not fulfilled.

24. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of GBP 10,500 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.

25. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of GBP 10,500 as of 3 October 2020 until the date of effective payment.

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

27. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with his 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.

28. 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.

29. 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.

30. 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 DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Ryo Fujii, is partially accepted.

2. The Respondent, Global FC, has to pay to the Claimant, the following amounts:

- GBP 15,000 as outstanding remuneration plus 5% interest p.a. as from 14 August 2020 until the date of effective payment.

- GBP 1,000 as outstanding remuneration plus 5% interest p.a. as from 3 October 2020 until the date of effective payment.

- GBP 10,500 as outstanding remuneration plus 5% interest p.a. as from 3 October 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 amount.

5. The Respondent shall provide evidence of payment of the due amount 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 amount due, plus interest as established 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 following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is 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 amount is paid.

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

2.

In the event that the payable amount as per in this decision 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 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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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