Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 25 February 2021
regarding an employment-related dispute concerning the Player A
COMPOSITION:
Geoff Thompson (England), Chairman
Stefano La Porta (Italy), member
Joseph Antoine Bell (Cameroon), member
CLAIMANT:
Player A, Country A
RESPONDENT:
Club B, Country B
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I. Facts
1.
On 1 March 2020, the parties concluded an employment contract valid as from 1 March
2020 until 31 May 2022.
2.
Furthermore, clause 13.9 of the contract stipulated the following:
“13.9. The Employee is paid a lump sum payment of a stimulating nature when signing
this Labor contract in the amount of 9,225,000 (Nine million two hundred twenty five
thousand) Country B Currency B, which is paid in installments in the following order: 1,725,000 (One million seven hundred twenty five thousand) Currency B up to April 30,
2020. Excluding personal income Lax, the Employee will receive 1,500,750 (One million
five hundred thousand seven hundred and fifty) Currency B;
-3,000,000 (Three million) Currency B up to May 30, 2020. Excluding personal income tax,
the Employee will receive 2,610,000 (Two million six hundred and ten thousand) Currency
B;
-4,500,000 (Four million five hundred thousand) Currency B up to October 30, 2020.
Excluding personal income tax, the Employee will receive 3,915,000 (Three million nine
hundred and fifteen thousand) Currency B.”
3.
The contract included the following signature box:
4.
The contract also provided the following signatures and initials at the bottom:
5.
The player explained that, on 28 September 2020, after a training session, he was
invited to the club’s office, where he was notified of a mutual termination of the
agreement.
6.
Within this context, allegedly, the parties concluded a termination agreement valid as
from 28 September 2020, with the following signature box:
7.
In this respect, the player contested the validity of said agreement and provided a
report.
8.
According to the player, he never received an original copy of this agreement.
9.
The player explained that, on 5 October 2020, he notified the authorities for a “crime
incident in the form of forging an official document”.
10. The player remained unemployed since the alleged termination of the agreement.
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11. On 30 October 2020, the player lodged a claim for breach of contract without just cause
and requested the payment of the following:
-
-
-
Currency B 58,845,500 net as compensation for breach of contract, plus 5% interest
p.a. as of 29 September 2020 until the date of effective payment. This amount
corresponds to the residual value of the contract, from 29 September 2020 until 31
May 2022 (I.e. 2,932,500 / 30 х 2 + 2,932,500 х 20 = 195,500 + 58,650,000 = Currency B
58,845,500 net);
Currency B 6,652,000 net as outstanding payables, plus 5% interest p.a. for each
delayed payment as from the day following the date when it was due until the
date of effective payment, further detailed as follows:
Currency B 2,737,000 for the remuneration from 1 September until 28 September 2020, I.e.
Currency B 2,932,500/30*28M
Currency B 3,915,000, following clause 13.9 of the contract and corresponding to the
last instalment.
12.
In order to contest the validity of the termination agreement, the player submitted an
“Expert Opinion”, dated 2 October 2020 with the following conclusion:
“The twelve signature affixed on behalf of Player A and located in three counterparts of
the Termination Agreement of the Labor Contract without a number of 1/3/2020 in
“Employee” lines were affixed by Player A himself. “
13.
The claimant further provided another expert report dated 13 October 2020 (461-20)
providing the following:
“I. The signatures affixed on behalf of Player A the images of which are located in the
copy of the TERMINATION AGREEMENT OF TILE LABOR CONTRACT without a number of
March 1, 2020 dated September 28. 2020 on the 1st page at the bottom of the sheet in
Employee line, on the 2nd page in Player A lines, were affixed by another person
imitating the authentic signature of Player A rather than by Player A himself.”
14.
The claimant also provided a report (032/10-20), dated 15 October 2020, contesting the
validity of the report dated 2 October 2020.
15.
In its reply to the claim, the club insisted in the validity of the termination agreement, and
contested the expertises conducted by the player.
16.
The club explained that, after the 2019-2020, it was relegated from the Country B Premier
League, and that, consequently, the player’s agent expressed a will to play in a higher
division. As a result, the club stated that it signed a termination agreement that was
mutually beneficial for both parties: the player “gets the opportunity to reduce the
burden of the “payroll” and “the player becomes a free agent and has the right to
continue his career in the Country B Premier League”.
17.
As to the forgery, the club argued that “no executive in the world would risk (…) as
forging a player’s signature” as “it would be more profitable to pay the player a monthly
salary.”
18.
The club further explained that, on 26 October 2020, the police decided to initiate a
criminal case.
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19.
Upon FIFA’s request, the club provided an alleged original copy of the agreement via
post, including a high definition scan.
20.
In his replica, the player expressed its will to conduct an “independent expertise” and to
share the costs.
21.
As to the reasons behind the agreement, the player expressed that “the Club is
misleading the FIFA DRC by inventing factual circumstances and supposed reasons for the
Player to make up the statement about the forgery of his signature.”
22.
As to the alleged criminal investigation, the player explained that “the reason for the
police decision to refuse to initiate a criminal case (…) was the absence of the offence as
stipulated in the Country B Criminal Code, especially given that it is nearly impossible to
detect the person who forged the Player’s signature, not because the police
confirmed that the Player’s signature was authentic.“
23.
As a result, the player insisted in his initial request.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analyzed whether it was competent to deal with the case at hand.
Taking into account the wording of art. 21 of the January 2021 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 Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasized 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 Dispute Resolution
Chamber 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 concerns a Country A player and a Country B club.
3.
In continuation, the Dispute Resolution Chamber analyzed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber 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 Dispute Resolution Chamber 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 Dispute Resolution Chamber
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.
In this respect, the Chamber first noted that the parties concluded an employment
contract valid as from 1 March 2020 until 31 May 2022.
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6.
Subsequently, the Chamber noted that the player lodged a claim against the club for
breach of contract without just cause, arguing that, on 28 September 2020, the club
terminated the contract.
7.
In this respect, the Chamber observed that the player argued that the club presented him
with a mutual termination agreement (cf. point I.6 above), which he denied having
signed. The Chamber also observed that the player contested the validity of said
agreement and that he alleged that he never received an original copy of this agreement.
8.
Conversely, the Chamber examined the Respondent’s position, which fundamentally
supported that the termination agreement was validly concluded.
9.
At this stage, the Chamber considered pertinent to recall the contents of art. 12 of the
Procedural Rules, according to which “3. Any party claiming a right on the basis of an
alleged fact shall carry the burden of proof. During the proceedings, the parties shall
submit all relevant facts and evidence of which they are aware at that time, or of which
they should have been aware if they had exercised due care” and “7. Evidence shall be
considered with free discretion, taking into account the conduct of the parties during the
proceedings, especially a failure to comply with a personal summons, a refusal to answer
questions and the withholding of requested evidence.”
10.
Besides, the Chamber also observed that, in his claim, the Claimant argued that the
aforementioned termination agreement was forged.
11.
However, in relation to said argument, the DRC considered it appropriate to remark that,
as a general rule, FIFA's deciding bodies are not competent to decide upon matters of
criminal law, such as the ones of alleged falsified signature or document, and that such
affairs fall into the jurisdiction of the competent national criminal authority.
12.
The foregoing being established, the Chamber examined the signature box of the
contested document (cf. point I.6 above), and noted that it appears to only contain the
initials of the player, but not his signature, which appears to be included in the original
contract (cf. point I.4 above).
13.
In the opinion of the Chamber, the fact that the contested document only included the
player’s initials, while the original contract included his initials as well as his signature,
may be an indication of the different probationary value of both documents.
14.
Indeed, in the opinion of the Chamber, any document intending to demonstrate a mutual
consent to terminate the original contract, shall meet a series of standards that are at least
as high as the ones included in the original contract.
15.
Therefore, considering that the contested termination agreement only included the
player’s initials and not his full signature (unlike in the original agreement), the Chamber
was of the opinion that it cannot establish that the player consented to the terms of the
termination agreement. In other words, the Chamber established that, insofar the
termination agreement was not accepted by the player, but was ultimately executed by
the club, de facto, the Respondent unilaterally terminated the contract on 28 September
2020.
16.
As a result, the Chamber considered that the next legal issue at stake is to establish
whether the Respondent had a just cause to terminate the contract on 28 September
2020.
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17.
In this respect, the Chamber was eager to emphasize that 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.
18.
In application of the aforementioned principle, the Chamber observed that the club did
not provide any specific reason to unilaterally terminate the contract on 28 September
2020, although noted that the player did not consent to the termination. Hence, since the
Respondent did not provide any reason, the Chamber understood that the termination
was without just cause and that, consequently, the Respondent is to be held liable for said
termination.
19.
However, before entering into the calculation of the financial consequences of said
termination, the Chamber deemed important to observe whether the club had any
outstanding liability until 28 September 2020.
20.
In this regard, after duly examining the evidence gathered during the course of the
investigation as well as the position of the parties, the Chamber observed that the
player’s remuneration for the month of September 2020 (Currency B 2,550,000), appears
to be outstanding.
21.
Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant, the total
outstanding amount of Currency B 2,550,000 net, as agreed in the employment contract.
22.
Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5%
interest p.a. over said amount as from the due date.
23.
In continuation, having established the amount of outstanding remuneration and that
that the Respondent is to be held liable for the termination of the contract with just cause
by the Claimant, the Chamber decided that, in accordance with art. 17 par. 1 of the
Regulations, the club is liable to pay compensation to the player.
24.
In this respect, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the law
of the country concerned, the specificity of sport and further objective criteria, including,
in particular, the remuneration and other benefits due to the player 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.
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25.
In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contains a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. 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.
26.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body.
27.
The members of the Chamber then turned their attention to the remuneration and other
benefits due to the player under the existing contract and/or the new contract, which
criterion was considered by the Chamber to be essential. The members of the Chamber
deemed it important to emphasize that the wording of art. 17 par. 1 of the Regulations
allows the Chamber to take into account both the existing contract and the new contract
in the calculation of the amount of compensation.
28.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from its date
of termination without just cause, i.e. October 2020 until 31 May 2022, and concluded
that the Claimant would have received in total Currency B 54,915,000 [i.e. October 2020
until 31 May 2022, i.e. Currency B 51,000,000 = 20 months* Currency B 2,550,000 + Currency
B 3,915,000, due on 30 October 2020, cf. point I. 2 for financial terms as stipulated in the
contract].
29.
Consequently, the Chamber concluded that the amount of Currency B 54,915,000 serves
as the basis for the final determination of the amount of compensation for breach of
contract in the case at hand.
30.
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.
31.
In this respect, the Chamber verified that the player did not conclude any new contract
afterwards.
32.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the player’s claim
and that the club must pay the amount of Currency B 54,915,000 as compensation for
breach of contract in the case at hand.
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33.
In addition, taking into account the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the aforementioned amount as of the
date of the claim.
34.
As to the legal fees, the Chamber referred to art. 18 pars. 2 and 4, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge” and “no procedural compensation shall
be awarded in proceedings of the Players’ Status Committee and the DRC.”
35.
Furthermore, taking into account the previous considerations, the Dispute Resolution
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.
36.
In this regard, the Dispute Resolution 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.
37.
Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.
38.
Finally, the Dispute Resolution 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.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, the following amounts:
-
Currency B 2,550,000 net as outstanding remuneration, plus 5% interest p.a. as from 1 October
2020 until the date of effective payment;
-
Currency B 54,915,000 as compensation for breach of contract without just cause, plus 5% interest
p.a. as from 30 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 [email protected], 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.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Chief
Legal
& Compliance
Emilio
García
Silvero Officer
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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 | [email protected] | T: +41 (0)43 222 7777
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