Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC)
passed on 25 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Chairman
S téphane Burchkalter (France), member
Jerom e Perlem uter (France), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On an unspecified date, the player from Country B, Player A (hereinafter: the player or the
Claimant) and the club from Country D, Club C (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the contract) valid “from second half of
season 2018-2019 until the end of season 2021-2022 full sport season”. According to the
information contained in the Transfer Matching System the season runs as from July until and
including May.
2.
Pursuant to article 2 of the contract, the Claimant was entitled to the following remuneration:
a) EUR 150,000 “for the second half of 2018-2019 season and 2019-2020 full season”;
b) EUR 125,000 for the season 2020/2021;
c) EUR 145,000 for the season 2021/2022.
3.
Moreover, according to article 3 of the employment contract, the Claimant was entitled to the
following payments “for each season”:
a) EUR 25,000, as a signing-on fee;
b) The “rest amount”, payable each month.
4.
According to the Claimant, on 16 March 2019, the Claimant flew to Country B “with the
intention of returning the following Sunday, 24 March 2019, at the latest”.
5.
The Claimant explained that he requested several times the payment of his outstanding
remuneration to the Respondent. In this respect, the Claimant pointed out that he received
from the Respondent EUR 20,000 out of EUR 25,000 of the signing-on fee (cf. point 3. above)
“with a considerable delay and only after [he] constantly reminded the Respondent to do so”.
6.
Moreover, the Claimant added that, despite his several reminders, during the months of March
and April 2019, the Respondent did not pay any of his salaries, except for one payment of EUR
8,500 on 3 May 2019.
7.
The Claimant further sustained that the Respondent “took his passport and did not return it
to him”.
8.
In this context, the Claimant underlined that, after his requests to obtain the passport in order
to travel back to Country B for the seasonal holidays, the Respondent’s asked him to meet on
16 May 2019 in the Respondent’s offices, after a scheduled match, where he would be able to
get the passport.
9.
The Claimant further recalled that he went alone to the meeting at 1 a.m. and that “he felt
intimidated by being there at 1 am in the middle of the night and by the presence of […] three
older men”, so he decided to record the conversation. In support of his statements, the
Claimant submitted two audio recordings.
Player A, Country B / Club C, Country D
Page 2 of 10
10. The Claimant also held that during the meeting, the Respondent accused him of several
wrongdoings. As per the player, the club “threatened” him to sign the following documents
(hereinafter jointly referred to as the termination agreements):
a) A termination agreement pursuant to which the parties terminated their relationship
and the Claimant acknowledged that the Respondent “fulfilled all his obligations
including financial matters as per the [...] contract;
b) An undated letter, by means of which he was notified of 3 fines: (i) one of 2% of the
contractual value for having been absent in March for 4 days without the Respondent’s
permission; (ii) a second fine of 20% of the total value of the contract for having not
attended 4 training sessions and (iii) a third one of 2% of the value of the contract for
having left the Respondent’s camp on 16 May 2019 without permission.
11. Moreover, the Claimant maintained that the Respondent threatened throughout the meeting
that it would keep his passport if he did not sign the aforementioned documents. The Claimant
added that he had been intimidated to the point that he was afraid for his life and, eventually,
signed the documents.
12. In light of the fact that he signed under duress and the fact that the Respondent obtained an
unfair advantage, the Claimant maintained that such documents should be declared null and
void.
13. Concerning the unfair advantage, the Claimant maintained that he would have never accepted
the untrue allegations contained in the termination agreements (cf. point 11. above) if he had
not found himself in straitened circumstances. According to him, there is a “disproportion […]
more than evident” between his and the Respondent’s situation deriving from those
documents.
14. Furthermore, the Claimant highlighted that the whole set up of the meeting in the middle of
the night and the threats suffered in that occasion amount to a condition of duress.
15. On 12 June 2019, the Claimant lodged a claim against the Respondent in front of FIFA,
maintaining that the club had terminated the employment relationship without just cause
and requesting the following:
a) Outstanding remuneration in the amount of EUR 8,500, plus 5% interest p.a. as
from 1 May 2019 until the date of effective payment;
b) compensation for breach of contract in the amount of EUR 378,000, corresponding
to the residual value of the contract, plus 5% interest p.a. as from 17 May 2019 “or,
alternatively, as from the submission of this claim” until the date of effective
payment.
16. In its reaction to the claim, the Respondent rejected the claim and pointed out that, upon
signature of the contract, the player had received the signing-on fee in the amount of EUR
25,000.
Player A, Country B / Club C, Country D
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17. The Respondent also explained that the Claimant missed trainings and this led to a disciplinary
decision imposed on him on 25 May 2019, which, according to the Respondent, had been
accepted by the Claimant with his signature on it.
18. The club further recalled that, on 16 May 2019, the parties convened for a meeting at the end
of which it was decided to mutually terminate the employment contract.
19. The Respondent further explained that it paid the Claimant all his salaries until the date of
mutual termination of the contractual relationship, i.e. 16 May 2019.
20. The club first of all pointed out that the registration of the meeting produced by the Claimant
should be disregarded as invalid evidence. Having said this, the Respondent explained that said
termination agreements are fully valid as none of the following conditions of unfair advantage
had been fulfilled.
21. In relation to the above, the Respondent pointed out that the Claimant knew in advance that
he was invited to a meeting after the last game of the season and he knew that the parties
would talk about his contractual situation. Moreover, the Respondent maintained that, at the
time of the meeting, the Claimant was clearly willing to leave the country and go back home.
22. Lastly, the Respondent further highlighted that the termination agreements were not signed
under any duress.
23. Upon FIFA’s request, the Claimant indicated that he had signed a new contract with the club
from Country B, Club E, valid as from 28 January 2020 until 9 June 2020, in accordance
with which he was entitled inter alia to an annual salary of 3,150, approx. EUR 3,619.
II.
Cons iderations of the DRC
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) 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 12 June 2019. Taking into account the wording of art.
21 of the 2018 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 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 2020), the DRC is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
player from Country B and an club from Country D.
Player A, Country B / Club C, Country D
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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, and considering that the present
claim was lodged on 12 June 2019, the June 2019 edition of said regulations (hereinafter: the
Regulations) were applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established, the DRC
entered into the substance of the matter. In this respect, it started by acknowledging all the
above-mentioned facts, the arguments and the documentation submitted by the Claimant and
the Respondent. 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.
First of all, the DRC noted that the parties entered into an employment contract valid as “from
second half of season 2018-2019 until the end of season 2021-2022 full sport season”, according
to which the Respondent undertook to pay the Claimant the following remuneration: (i) EUR
150,000 “for the second half of 2018-2019 season and 2019-2020 full season”; (ii) EUR 125,000
for the season 2020/2021; (iii) EUR 145,000 for the season 2021/2022. Furthermore, pursuant to
article 3 of the contract, the Chamber noted that the club further committed itself to pay a
signing-on fee in the amount of EUR 25,000.
6.
The Chamber then reviewed the claim of the Claimant, who maintained that “[his signature]
of the two documents was achieved by the Respondent only due to duress or due to an unfair
advantage” and therefore requested it to be deemed null and void and the Respondent to be
held liable for the termination of the contract without just cause on 16 May 2019.
7.
At this stage, the members of the DRC turned their attention to the elements put forward by
the Claimant in support of his assertion that he was coerced to sign the termination
agreements. In doing so, the Chamber first observed that the Claimant submitted two audio
recordings of the meeting held with the Respondent on 16 May 2019.
8.
The Dispute Resolution Chamber equally took due note of the fact that the Respondent, for its
part, refuted the Claimant’s allegations and affirmed that the termination agreements had
been validly concluded on the date indicated therein, namely on 16 May 2019.
9.
In view of the aforementioned dissent positions of the parties in respect of the question as to
whether the agreement on the termination of the contract had been signed under duress by
the Claimant, the members of the Chamber firstly referred to art. 12 par. 3 of the Procedural
Rules, according to which any party claiming a right on the basis of an alleged fact shall carry
the burden of proof.
10. With the above in mind, the members of the Chamber concurred on the fact that it was up to
the Claimant to demonstrate that he signed the termination agreements under duress and,
consequently, that said documents had not been validly concluded.
Player A, Country B / Club C, Country D
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11. Having stated the above, the members of the Chamber turned their attention to the evidence
submitted by the Claimant in order to support his argumentations and noted that the latter
provided two audio recordings of the meeting held with the Respondent on 16 May 2019 (cf.
point I.9. above).
12. On account of the above-mentioned considerations and in view of the evidences submitted by
the Claimant, the members of the Chamber concurred that such evidences were sufficient to
demonstrate that the player signed the documents under duress. In particular, having analysed
all the information and documentation provided in this regard, the Chamber made the
following considerations:
a)
b)
c)
d)
e)
The meeting in question took place late at night, without any representative of
the player other than himself present, without a translator, at the club’s premises,
in the presence of three senior club officials;
The Player was deprived of his passport and blackmailed to sign the termination
agreements in order to have it back;
The audio recordings clearly show a hostile environment towards the player;
The player made clear during the meeting that he was only signing the
termination agreements because he was being threatened;
The player has discharged its burden of proof (art. 12 par. 3 of the Procedural
Rules, audio recordings are valid).
13. That having been established, the Chamber decided that the termination agreements signed
on 16 May 2019 were to be considered null and void and, therefore, concluded that the
Respondent had terminated the employment contract without just cause on 16 May 2019.
14. 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.
15. First of all, the members of the Chamber concurred that the Respondent must fulfil its
obligations as per the employment contract up until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”. Consequently, the
Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that
was outstanding at the time of termination i.e. the amount of EUR 8,500, corresponding to the
monthly salary for April 2019.
16. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. on the amount of EUR 8,500 as from 1 May 2019 until
the date of effective payment.
17. 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
Player A, Country B / Club C, Country D
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of contract in addition to any outstanding salaries on the basis of the relevant employment
contract.
18. 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.
19. 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.
20. 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 16 May 2019, the contract would run for another 36 months. 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 EUR 353,333 and that such amount shall serve as the basis for the
final determination of the amount of compensation for breach of contract.
21. 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 enabled 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 breach of contract in connection with the
player’s general obligation to mitigate his damages.
22. Indeed, on 28 January 2020, the Claimant concluded an employment contract with the club
from Country B, Club E, valid as from the date of signature until 9 June 2020, according to
which the Claimant was entitled to an approximate annual salary of EUR 3,619.
23. Consequently, in view of the above, the DRC decided that the Respondent must pay the total
amount of EUR 349,714 to the Claimant, which is considered by the DRC to be a reasonable
and justified amount as compensation for breach of contract.
Player A, Country B / Club C, Country D
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24. In addition, taking into account the Claimant’s request, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of compensation as from 12 June
2019 until the date of effective payment.
25. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
26. Furthermore, taking into account the consideration under number II./3. 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.
27. 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.
28. 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.
29. 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.
*****
Player A, Country B / Club C, Country D
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III. Decis ion of the DRC
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant the amount of EUR 358,214, plus interest as
follows:
-
at the rate of 5% p.a. on the amount of EUR 8,500 as from 1 May 2019 until the date of
effective payment;
at the rate of 5% p.a. on the amount of EUR 349,714 as from 12 June 2019 until the date of
effective payment.
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 amounts mentioned under point III.2. above.
5. The Respondent shall provide evidence of payment of the due amount in accordance with point
III.2. above to FIFA to the e-mail address [email protected], duly translated into one of the official
FIFA languages (English, French, German, Spanish).
6. In the event that the amount plus interest due in accordance with point III.2. above is not paid
by the Respondent w ithin 45 day s 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 amount is 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 point III.6. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
Player A, Country B / Club C, Country D
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8. In the event that the aforementioned sum plus interest is still not paid by the end of the ban of
three entire and consecutive registration periods, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note relating to the motiv ated decis ion (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
______________________________
Emilio García Silvero
Chief Legal & Compliance Officer
Player A, Country B / Club C, Country D
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