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 20 July 2020

Decision of the

Dispute Resolution Chamber

passed via videoconference, on 20 July 2020,

regarding an employment-related dispute concerning the player A

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Roy Vermeer (the Netherlands), member José Luis Andrade (Portugal), member

CLAIMANT:

A, Country A

Represented by

RESPONDENT:

B, Country B

I. FACTS OF THE CASE

1. On 1 July 2019, the Country A player, Adolfo Miranda Araujo (hereinafter: the player or the Claimant) and the Country B club, B (hereinafter: the club or the Respondent) signed an employment agreement valid as from the date of signature until 20 June 2021 (hereinafter: the contract).

2. According to art. 6 of the contract, the player is entitled to receive a monthly remuneration of USD 7,000 “net”.

3. Art. 17 and 18 of the contract foresaw the following: “17. FORCE MAJEURE:

Subject to the other provisions of this Agreement, the failure by a party to fulfil any of its obligations

under this Agreement shall not be considered to be a breach of or a default under this Agreement in so far as the inability arises from an event of Force Majeure, provided that the party affected by that event has taken reasonable precautions, has duly communicated the occurrence of the event to the other party, and has taken due care and attempted to mitigate the consequences of such event, all with the objective of carrying out the terms of this Agreement without delay. For the purpose of this Agreement, “FORCE MAJEURE” means an event or circumstance which is beyond the reasonable control of a party and which makes a party’s performance of its obligations impossible and includes but is not limited to wars, acts of terrorism, civil unrest, hostilities, public disorder, epidemics, fires, Acts of God, Court Orders or Governmental restrictions and actions and decisions of regulatory and sports authorities.

18. Where the Club has made payments to the Player during any period of incapacity owing to illness or injury and the Player’s absence is due to an action of a third party (other than of the Club’s officials and Players) giving the Player a right of recovery against the Third party then if the Player makes any claim against such third party, the Player must where he is reasonably able to do so include as part of such claim from such third party a claim for recovery of any such payment and upon successful recovery repay to the Club the lesser of the total Fee paid by the Club to the Player during the period of incapacity and the amount of any damages payable to or earnings under this Agreement under any compromise settlement or judgement. Any amounts paid by the Club to the Player in such circumstances shall constitute loans from the Club to be repaid to the Club to the extent the Player makes recovery of such amounts from the relevant Third party.”

4. Art. 19 of the contract inter alia stipulated the following:

“All disputes relating to termination shall be referred to the Country B Federation Player Status Committee for adjudication directly without undergoing the process of good faith negotiations and mediations referred to in Clause 19.2 and 19.3 unless both the Player and the Club mutually decide otherwise.

[…]

19.5 At any stage of the good faith negotiation process or the mediation process referred in Clause

19.3 and 19.4 both the Player and Club can mutually agree to refer the matter to the Country B Federation Player Status Committee for an urgent decision and, in such circumstances the requirement for the 10 day windows for good faith negotiations and mediation under Clause 19.3 and 19.4 will not apply.

[…]

19.6 If the dispute is not within the jurisdiction of scope of the Country B Federation Player Status Committee then it shall be referred to arbitration under a sole arbitrator appointed by mutual consent under the provisions of the Arbitration and Conciliation Act 1996 or any modification thereof then in effect. The Arbitration shall be in English and the seat and venue of Arbitration shall be City Country B. Subject to the above, the Courts in City Country B shall have sole and exclusive jurisdiction in respect of all matters addressed under the Clause 19.6”

5. On 13 May 2020, the Claimant lodged a claim before FIFA against the Respondent, claiming outstanding remuneration and compensation for breach of contract, broken down as follows:

Outstanding remuneration:

• USD 24,500 as outstanding salaries related to the period between December 2019 and March 2020;

• USD 240 as reimbursement of the costs of “VISA fees”;

• 5% interest p.a. on the abovementioned amounts as from 10 January 2020.

Compensation for breach of contract:

• USD 111,000 as residual value of the contract April 2020 and June 2021;

• USD 45,000 as six additional monthly salaries under the concept of “specificity of sport”;

• 5% interest p.a. on the abovementioned amounts as from 29 March 2020.

6. In his claim, the Claimant declared that between December 2019 and March 2020, the Respondent failed to pay his monthly remuneration.

7. Then, the Claimant explained that on 29 March 2020 the Respondent terminated the contract invoking force majeure in view of the COVID-19 pandemic without any prior notice.

8. In particular, the Claimant referred to the following abstract:

“We are writing to you to formally declare a Force Majeure event due to the Covid-19 pandemic, Government enforced restrictions and the decisions of the Regulatory and Sport Authorities. As you are aware the football league in Country B as well as all international events have been suspended. The Government has also ordered the closure of all sporting events and banned the use of stadiums in Country B.

There is express provision for this type of event in your agreement with the Club (under Clause 17)3. It is clear that these events are neither the fault of the Club or the players and are due to events which are beyond anyone’s control.

We have been advised by the Country B Government and the Sports Development Authority to send all foreign players and staff safely back to their respective countries and to confirm their departure.

It is therefore with great regret and sadness that the Club has no alternative but to terminate your agreement with the Club with immediate effect through this declaration of Force Majeure. (…)

We will ensure that the fee payable for December 2019 and January and February 2020, will be paid by 31st of July 2020 or at the time when the situation gets normal whichever is later. We will keep you updated when those payments have been made”.

9. The Claimant rejected the force majeure invoked by the Respondent by correspondence dated 31 March 2020, pointing out that the Respondent had unlawfully terminated the contract and offered a 10-day deadline to “find an amicable solution” to the issue of termination as well as to the outstanding salaries.

10. The Claimant explained that in reply, the Respondent confirmed the termination and this time stated that the overdue salaries of the Respondent by no later than the end of April 2020, which to date remain outstanding.

11. The Claimant pointed out that the Respondent terminated without any negotiation, and rejected his offer for finding an amicable solution to the parties’ issue.

12. The Claimant additionally stated that the Respondent invoked force majeure to terminate the contracts of his foreign players only, which is against the principle of equal treatment, and that the Respondent was rather trying to use the current situation to his advantage to restructure the squad and terminate the contract at more than a year prior to his natural expiry bearing in mind that the Claimant had been injured for the whole season.

13. In fact, the Claimant pointed out that the Country B FA suspended the season on 14 March 2020, but did not cancel it.

14. Recalling the definition of force majeure from the Swiss Federal Tribunal according to which “(i) Force majeure is understood to be an unforeseeable, extraordinary event that is not related to the "operation" of the person liable, but breaks in with inevitable force from outside (…); (ii) Force majeure, in the opinion prevailing in the case law and in the literature, cannot be considered in any case if the person who appeals to it could have averted the extraordinary event or its consequences by reasonable precautions”, the Claimant determined that this principle did not apply to the matter at hand and that the Respondent could not terminate the agreement in this respect.

15. In addition, the Claimant indicated that the Respondent’s termination was against the FIFA Regulations and the FIFA COVID-19 Football Regulatory Issues, which do not foresee termination with just cause in case of force majeure.

16. What is more, the Claimant underlined the following facts:

“(i) The Respondent already owed substantial financial entitlements to the Player;

(ii) The Respondent did not attempt to protect the Contract by finding the amicable solution with the Claimant in relation to the state of “force majeure” despite benevolent offers of the latter;

(iii) The Respondent did not attempt to modify the terms and conditions of the Contract in good faith;

(iv) The Respondent did not take any reasonable and proportionate decisions in relation to the temporary modification of the Contract;

(v) The Respondent did not suspend the Contract for the duration of the state of “force majeure”;

(vi) The Respondent did not apply the same measures for the whole squad: the Respondent only terminated the contracts of specific employees (foreign players), hereby groundlessly patronising the national players, discriminating the foreign ones and severely violating the principle of equal treatment.”

17. Furthermore, recalling the contents of art. 17 of the contract, the Claimant highlighted that this clause did not give “the Respondent a right to terminate the fixed-term Contract prematurely and unilaterally”, and in any case the Respondent did not comply with its provisions as it did not attempt to mitigate the consequences of such alleged force majeure it had invoked.

18. In view of all the above, the Claimant concluded that the Respondent terminated the contract without just cause, and that the situation surrounding the COVID-19 pandemic shall not relieve it from its contractual obligations.

19. In its reply to the claim, the Respondent first of all denied that FIFA is competent to deal with the matter at hand, as based on article 19 of the contract, the matter at hand should have been referred to the Country B Federation Players’ Status Committee. Furthermore, the Respondent also refers to the FIFA COVID-19 Guidelines and states that parties should solve their ‘differences’ ‘at a national level’.

20. Moreover, the Respondent is of the opinion that Country B law should be applicable to the matter at hand.

21. As to the substance, the Respondent asks for the rejection of all of the claims of the Claimant. In this respect, it acknowledges that it did not pay the Claimant his salaries in the period between December 2019 and February 2020, however that it would made such payments by the end of April 2020. Further, the Respondent explains due to restrictions in the service of the local banks as a result of COVID-19, it could not make the payments until now.

22. Further, the Respondent explains that the Country B League is suspended as from 15 March 2020, that the player could not render his services anymore and that as a result, it is facing financial difficulties. In view of these circumstances, the Respondent explains that it had no other option but to terminate the contract with the Claimant on 29 March 2020, based on article 17 of the contract.

23. Moreover, the Respondent denies that it has to pay for the player’s visa fee.

24. The Respondent also argued that article 17 of the contract cannot be seen as a ‘disruption contractual stability’, as the circumstances under which the club used the force majeure concept, were truly exceptional. Further, the Respondent explains that it did not only suspend the payment to its foreign players, but also to its Country B players.

25. Again, the Respondent referred to the FIFA COVID-19 Guidelines and argued that these guidelines are not intend to supersede national law. In this respect, the Respondent explains that the termination was made in line with Country B law.

26. Subsequently, the Respondent argues that ‘there was no requirement under the Clause 17 for the Club to consider the duration of the suspension of the I-League when exercising its rights’.

27. In conclusion, the Respondent is of the clear opinion that the circumstances around the termination of the player’s contract (the outbreak of COVID-19) can be defined as a force majeure. As a result, the Respondent denies the right of the Claimant to claim compensation for breach of contract, and explains that it will pay the overdue payables as soon as possible.

28. After having been requested to provide an update about his contractual situation, the Claimant informed the FIFA Administration that he remained unemployed after the unilateral termination of contract.

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 May 2020 and submitted for decision on 20 July 2020. Taking into account the wording of art. 21 of the 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed 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 (edition June 2020), the Dispute Resolution Chamber is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Country A player and a Country B club.

3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of article 19 of the employment contract and alleging that the Country B Federation Players’ Status Committee should instead be competent to deal with the matter at hand.

4. In this respect, the Chamber emphasised that in accordance with art. 22 lit. b) of the June 2020 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the Association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

5. Furthermore, the members of the Chamber observed that the Respondent – despite arguing that based on the contents of article 19 of the contract the Country B Federation Players’ Status Committee should be competent to deal with the matter at hand – did not provide any documentary evidence in connection with said deciding body.

6. In view of the foregoing, the DRC pointed out that it could not be established that the Country B Federation Players’ Status Committee was to be considered as an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs in the sense of FIFA Circular no. 1010. What is more, according to the members of the DRC, it would have been up to the Respondent to submit documentary evidence of said allegation.

7. As a result, the members of the Chamber decided that, in view of the lack of any documentary evidence provided in relation to compliance with the minimum requirements of a national decision making body, the Country B Federation Players’ Status Committee could not be considered as the competent body to decide the present dispute.

8. As a result, and taking into consideration all of the above circumstances, the Dispute Resolution Chamber concluded that the Respondent’s objection to the competence of FIFA to hear the present dispute has to be rejected, and that the Dispute Resolution Chamber is therefore competent, on the basis of art. 22 b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

9. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the claim was lodged on 13 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance

10. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

11. Having said that, the members of the Chamber acknowledged that on 18 July 2019, the Claimant and the Respondent signed an employment agreement valid as from the date of signature until 20 June 2021, pursuant to which the Respondent undertook to pay to the Claimant, inter alia, a monthly payment of USD 7,000 net.

12. The members of the Chamber noted that the Claimant explained that, on 29 March 2020, the Respondent had terminated the contract in force between the parties, invoking force majeure in view of the COVID-19 pandemic, without any prior notice.

13. The Claimant, on the one hand, maintained that the Respondent had terminated the contract without just cause. First of all, the Claimant referred to the fact that the Respondent, between December 2019 and March 2020, had failed to pay him his monthly remuneration.

14. What is more, the Claimant argues that the reason brought forward by the Respondent in the termination letter (i.e., the alleged existence of a situation of force majeure in view of the COVID-19 pandemic) cannot be upheld. In this respect, the Claimant explained that the Respondent used the alleged existence of a force majeure situation to terminate the contracts of its foreign players only, which is against the principle of equal treatment. According to the Claimant, the Respondent was rather trying to use the current situation around COVID-19 to its advantage to restructure the squad and terminate the Claimant’s contract - more than a year prior to its natural expiry - bearing in mind that the Claimant had been injured for the whole season.

15. In addition, the Claimant indicated that the Respondent’s termination was not in line with FIFA Regulations and the FIFA COVID-19 Football Regulatory Issues, which do not foresee “in a termination with just cause in case of force majeure”.

16. Finally, the Claimant further explained that – after the termination of the contract on 29 March 2020 by the Respondent - he even offered a 10-day deadline to “find an amicable solution” to the issue of termination, as well as to the outstanding salaries. However, according to the Claimant, the Respondent only confirmed the termination and stated that the overdue salaries would be paid to the Claimant by no later than the end of April 2020, which however to date remain outstanding.

17. The Chamber noted that the Respondent, on the other hand, rejected the claim put forward by the Claimant and argued that, although it did not pay the Claimant his salaries in the period between December 2019 and February 2020, it would do so by the end of April 2020. Further, the Respondent explains due to restrictions in the service of the local banks as a result of COVID-19, it could not make the payments until now.

18. Furthermore, according to the Respondent, the Country B League was suspended as from 15 March 2020, as a result of which (a) the player could not render his services anymore and (b) the club faced financial difficulties. In view of these circumstances, the Respondent explains that it had no other option but to terminate the contract with the Claimant on 29 March 2020 based on article 17 of the contract, which provides for the possibility to terminate the contract due to force majeure. According to the Respondent, the outbreak of COVID-19 pandemic can be defined as a force majeure event, justifying a premature termination of the contract, based on article 17 of the contract, that cannot be seen as a ‘disruption contractual stability’, as the circumstances under which the club used the force majeure concept were truly exceptional. In this respect, the Respondent explains that it did not only suspend the payment to its foreign players, but also to its Country B players.

19. Finally, the Respondent referred to the FIFA COVID-19 Guidelines and argued that these guidelines are not intended to supersede national law. In this respect, the Respondent explains that the termination was made in line with Country B law, which should be applicable to the matter at hand.

20. The members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the contract was terminated with or without just cause by the Respondent on 29 March 2020. The Chamber also underlined that, subsequently, it would be necessary to determine the consequences for the party that was responsible for the early termination of the contractual relationship.

21. The Chamber, first of all, wished to highlight that the unilateral termination of the contract by the Respondent on 29 March 2020 was apparently based on the worldwide COVID-19 pandemic.

22. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

23. In addition, the Chamber turned its attention to wording of article 17 of the contract, which was relied upon by the Respondent as the legal basis to unilaterally terminate the contract. Article 17 reads as follows:

17. FORCE MAJEURE:

Subject to the other provisions of this Agreement, the failure by a party to fulfil any of its obligations under this Agreement shall not be considered to be a breach of or a default under this Agreement in so far as the inability arises from an event of Force Majeure, provided that the party affected by that event has taken reasonable precautions, has duly communicated the occurrence of the event to the other party, and has taken due care and attempted to mitigate the consequences of such event, all with the objective of carrying out the terms of this Agreement without delay. For the purpose of this Agreement, “FORCE MAJEURE” means an event or circumstance which is beyond the reasonable control of a party and which makes a party’s performance of its obligations impossible and includes but is not limited to wars, acts of terrorism, civil unrest, hostilities, public disorder, epidemics, fires, Acts of God, Court Orders or Governmental restrictions and actions and decisions of regulatory and sports authorities.

24. The members clearly noted that the unilateral termination of the contract on 29 March 2020 was based on the Respondent’s assumption that the outbreak of the COVID-19 pandemic was to be considered a force majeure situation, as a result of which it had no other option but to terminate the contract.

25. Analysing the concept of a situation of force majeure, the members of the Chamber noted that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that the COVID-19 outbreak was a force majeure situation in any specific country or territory, or that any specific employment or transfer agreement was impacted by the concept of force majeure. In other words, in any given dispute, it is for a party invoking force majeure to establish the existence of said event under the applicable law/rules as well as the consequences that derive in connection thereto. The analysis of whether a situation of force majeure existed has to be considered on a case- by-case basis, taking into account all the relevant circumstances.

26. Turning to the content of the file, the members of the Chamber acknowledged that the Respondent, in this particular matter, did not submit any form of documentary evidence to support its position that the situation it faced was to be considered a situation of force majeure entitling it to terminate the contract. Moreover, the Chamber referred to the contents of article 17 of the contract, which also provides that “the party failing to fulfil its obligations shall take ‘reasonable precautions, has duly communicated the occurrence of the event to the other party, and has taken due care and attempted to mitigate the consequences of such event, all with the objective of carrying out the terms of this Agreement without delay”.

27. In this respect, it appeared to the members that there is no documentation on file on the basis of which it could be concluded that the Respondent took such precautions or attempted to mitigate the damages for the Claimant. As said, the Respondent decided to immediately unilaterally terminate the contract, without exploring less drastic measures and without any prior notice to the player. Equally, the deciding body remarked that the clause at stake aimed at allowing the party to carry out the terms of the agreement again without delay, and not at the termination of the contractual relationship. In this regard, the Chamber also wished to note that (i) the Country B Football Federation only suspended the season and did not cancel it and (ii) in any event the contract was due to run for an additional season, until 20 June 2021 and that, therefore, nothing indicates that the contract had become permanently impossible to perform.

28. Finally, the members of the Chamber also wished to refer to the fact that the aforementioned COVID- 19 documents issued by FIFA – as per the explicit wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines - are only applicable to “unilateral variations to existing employment agreements”. Therefore, except where a termination of a contract occurred following a unilateral variation made as a result of COVID-19 (in which case the validity of the variation must first be assessed under the guidelines), said guidelines do not apply to assess unilateral terminations of existing employment agreements. The members of the Chamber further noted that for the assessment of disputes that are presented before the FIFA judicial bodies concerning the unilateral termination of a contract, the FIFA Regulations as well as the established jurisprudence of the Chamber, shall apply. The Chamber noted that, in the present case, there was no variation of the contract prior to its termination. The guidelines are therefore inapplicable and only the FIFA Regulations and the jurisprudence of the Chamber will apply.

29. In this respect, the Chamber recalled that, as per the long-standing and constant jurisprudence of both the DRC and CAS, 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 in order for an employer to ensure the employee’s fulfilment of his contractual duties, 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.

30. In view of the above, the Chamber first of all observed that the Respondent had unilaterally terminated the contract on 29 March 2020, without any prior indication. In particular, the club did not invoke any wrongdoing on the player’s side. What is more, the Respondent did not undertake any attempt to find an amicable solution with the player, and rather unilaterally terminated the contract with the player from one day to the other. The Chamber in this respect also referred to the player’s explicit request on 31 March 2020 towards the Respondent to find an amicable solution after having received the termination letter. Said request was ignored by the Respondent, the latter only confirming that the contract was terminated and that possible outstanding salaries would be paid in April 2020.

31. Furthermore, the members of the Chamber deemed it important to outline that it remained uncontested that the Respondent had not fulfilled its financial obligations set forth in the employment contract signed between the parties already ahead of the outbreak of the pandemic and that it failed to pay to the Claimant the salaries between December 2019 and March 2020. Hence, at the moment of terminating the contract, the Respondent had already been in default of its obligations.

32. As to the reasons brought forward by the Respondent for the non-payment of said salaries, the DRC was unanimous in its opinion that said argumentation, i.e. that due to restrictions in the service of the local banks as a result of COVID-19 the payments could not be made, cannot justify the non- fulfilment of the Respondent’s contractual obligations towards the Claimant, particularly if one is to consider that at least three of the salaries should have been paid before the pandemic had even broken out. Specifically, the Chamber concluded that the COVID-19 outbreak shall not be used as an opportunity to escape from debts that arose from contractually agreed payments that fell due already before the COVID-19 outbreak.

33. On account of all the above-mentioned considerations, the Chamber decided that the Respondent had no justification 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 29 March 2020. Consequently, the Respondent is to be held liable for such early termination.

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

35. First of all, the members of the Chamber concurred that the Respondent must fulfil 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”.

36. On account of the above considerations and the documentation on file, the Chamber 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 USD 24,500, consisting of the salaries the unpaid part of the salary due to the player in December 2019, in the amount of USD 3,500, as well as the monthly salaries of USD 7,000 each for the period between January 2020 and March 2020.

37. In addition, taking into account the Claimant’s claim and bearing in mind that the documentation on file did not allow the members of the Chamber to determine the due dates of the specific financial obligation, the Chamber decided to award the Claimant interest of 5% p.a. as of the respective due dates.

38. In addition, the Chamber also decided to reject the Claimant’s claim for reimbursements of the costs of a VISA for a stay in Country B, as there is no documentary evidence on file that the Claimant had effectively occurred said costs.

39. In continuation, the Chamber 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 remuneration on the basis of the relevant employment contract.

40. In this context, the Chamber 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.

41. In application of the relevant provision, the Chamber 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 Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

42. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber 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 Chamber pointed out that at the time of the termination of the employment contract on 29 March 2020, the contract would run for another 15 months, that is, until June 2021. Consequently, taking into account the financial terms of the contract, the Chamber 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 USD 97,500 net and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

43. In continuation, the Chamber remarked that following the early termination of the employment contract at the basis of the present dispute, the Claimant was not able to find new employment. As a result, the Claimant was not able to mitigate his damages.

44. In view of all of the above, the Chamber decided that the Respondent must pay the amount of USD 105,000 to the Claimant as compensation for breach of contract without just case, which is considered by the Chamber to be a reasonable and justified amount as compensation.

45. In addition, taking into account the Claimant’s claim and the longstanding jurisprudence of the Chamber in this respect, the Chamber decided to award the Claimant interest of 5% p.a. as of 13 May 2020.

46. The request for additional compensation based on the specificity of sport was rejected, since the members did not find any particular reason for such adjustment. Furthermore, reference was also made to art. 17 par 1.2 of the Regulations, which provides for additional compensation only in case the player was able to mitigate his damage and the early termination of the contract being due to overdue payables. None of these cumulative conditions are met in the matter at hand.

47. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of USD 129,500 to the Claimant, consisting of the amount of USD 24,500 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 USD 105,000 corresponding to compensation for breach of contract without just cause.

48. The Dispute Resolution Chamber concluded its deliberations in the present matter stipulating that any further claim lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is admissible and partially accepted.

49. Furthermore, taking into account the consideration under number II./9. above, the Chamber 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.

50. In this regard, the Chamber 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.

51. Therefore, bearing in mind the above, the DRC 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.

52. Finally, the Chamber 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, A, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, B, has to pay to the Claimant the following amounts:

• USD 3,500 as outstanding remuneration plus 5% interest p.a. as from 10 January 2020 until the date of effective payment;

• USD 7,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020 until the date of effective payment;

• USD 7,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2020 until the date of effective payment;

• USD 7,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until the date of effective payment;

• USD 105,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 13 May 2020 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. 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.

6. 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).

7. 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:

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).

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.

8. The decision is issued free of costs.

For the Dispute Resolution Chamber:

Chief Legal & Compliance Officer

1.

2.

Emilio García Silvero

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

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777