Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 5 May 2022
regarding an employment-related dispute concerning the player A
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Khadija Timera (Senegal), member
Khalid Awad Al-Thebity (Saudi Arabia), member
CLAIMANT:
A, Country A
Represented by
RESPONDENT:
B, Country B
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I. Facts of the case
1.
On 20 January 2021, A (hereinafter: “the player” or “the Claimant”) and B (hereinafter:
“the club” or “the Respondent”) concluded an employment contract (hereinafter: “the
contract”) valid from 1 February 2021 until 31 December 2022.
2.
Article 4 of the contract stated that the player was entitled to receive from the club
the total amount of USD 600,000 net payable as follows:
• USD 27,272 from February to November 2021;
• USD 27,280 on December 2021;
• USD 27,272 from February to November 2022;
• USD 27,280 on December 2022.
3.
Article 10.1 of the contract provided that the club should be entitled to terminate
the contract by written notice upon the occurrence of any of the following reasons:
• “10.1.1 The Club files a petition for bankruptcy, civil rehabilitation or corporate
reorganisation proceedings, or such a petition is filed for the Club by third parties;
• 10.1.2 The Player violates any of the conditions in this Agreement and rejects or
ignores the warning of the Club, and the situation is not remedied within 14 days of
warning;
• 10.1.3 The Player becomes incapable of working permanently on account of sickness
or injury;
• 10.1.4 The Player sustains injuries under the situations that are not related to the
performance of the obligations in this Agreement and the purpose of this Agreement
becomes difficult to achieve;
• 10.1.5 The Player commits gross misconduct or any criminal offence;
• 10.1.6 The Player is suspended by the football authorities owing to his fault and the
purpose of this Agreement becomes difficult to achieve;
• 10.1.7 The visa/work permit of the Player becomes invalid in the middle of the Term
owing to his fault;
• 10.1.8 The Player significantly disrupts the Club´s moral order; or
• 10.1.9 The Player causes other negative impacts on the Club´s interests.”
4.
Article 10.3 of the contract stated that in the case that the club decided to terminate
the agreement for any other reason than those that are specified on article 10.1, it
should pay the player the remaining basic remuneration that accrues until the end
of the contract.
5.
By correspondence dated 19 January 2022, the club sent a termination notice to
the player valid from the following day informing its wish to terminate the contract
for the following reasons:
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• “In August 2021, the club (XX) instructed you not to go without necessity under de
Covid-19 situation, but you went out to play billiards in breach of the instruction.
The club (XX) issued a strict warning to you for this breach; and
• In November 2021, when you returned to your home country of A for the funeral of
a relative, you were given a training menu by the club (XX) but you did not follow,
and you played a football match for another team and got injured. After your return
to Country B, you were unable to even take part in any training due to the injury
until the end of the 2021 season.”
II. Proceedings before FIFA
6.
On 17 February 2022, the Claimant filed the claim at hand before FIFA. A brief
summary of the position of the parties is detailed in continuation.
a. Position of the Claimant
7.
According to the Claimant, the unilateral termination performed by the club was
without just cause. The Claimant requested FIFA to condemn the club to pay
compensation and to ban it from registering any new players for two entire and
consecutive registration periods.
8.
The player argued that during mid October 2021, his uncle passed away and the club
gave him a 14 days permission to travel to his home country to attend the funeral.
9.
In this respect, the player explained that during his time in Country A, the club sent
him training programs, which were received and fulfilled by him. According to the
player, he kept regular contact with the club´s translator, Mr xx. In this regard, the
player enclosed communications with Mr xx showing than on 26 October 2021, the
player proposed Mr xx to train with his old team to keep his fitness level and on 27
October 2021, Mr xx confirmed that the was authorized to train with his old team.
10. Moreover, the player stated that on the last day of his stay in Country A and during
training, he had a little knock on his knee. After consulting with the club, he stopped
training until he would be back in Country B.
11. On 17 February 2022, the player lodged a claim before FIFA against the club
requesting the total amount of USD 381,816. Said amount is composed as follows:
• USD 300,000 as mitigated compensation that equals the remaining value of the
contract along and interest of 5% p.a. starting from 19 January 2022 until the date
of effective payment;
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• USD 81,816 (USD 27,272 x 3) as additional compensation for the breach of the
contract as well as an interest of 5% p.a. starting from 19 January 2022 until the
date of effective payment.
12. On 18 April 2022, the player signed a new employment contract with the Country A
club, C valid for four months, i.e. until 18 September 2022 with a monthly salary
amounting to USD 1,000.
b. Position of the Respondent
13. The Respondent did not reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 presented to FIFA on 17 February
2022 and submitted for decision on 5 May 2022. Taking into account the wording of
art. 34 of the October 2021 edition of the Procedural Rules Governing the Football
Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
15. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (31 March 2022 edition),
the Dispute Resolution Chamber is 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.
16. Subsequently, 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 (31 March
2022 edition), and considering that the present claim was lodged on 17 February
2022, the August 2021 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
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b. Burden of proof
17. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis
of an alleged fact shall carry the respective burden of proof. Likewise, the Chamber
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it
may consider evidence not filed by the parties, including without limitation the
evidence generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
18. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. 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.
i. Main legal discussion and considerations
19. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Respondent did not submit its position to
the claim lodged against it by the Claimant, despite having been asked to do so by
FIFA. Therefore, the Chamber concluded that, in this way, the Respondent had
renounced to its right of defence and, thus, it had not formally contested the
allegations of the Claimant.
20. In this context, the Chamber acknowledged that on 20 January 2021 the parties
concluded the contract, which was valid from 1 February 2021 until 31 December
2022.
21. Moreover, the Chamber highlighted that it remained uncontested that on 19 January
2022, the club terminated the contract by sending a written notification to the player.
22. Subsequently, the Chamber turned its attention to whether the termination by the
club was with or without just cause.
23. In this regard, the DRC took note that from the evidence submitted by the Claimant,
which remains uncontested by the Respondent, the player was authorized by the club
to go to Country A for personal reasons and to train with his old club.
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24. Furthermore, the DRC observed that the Claimant informed the Respondent about
his injury and that the player followed the instructions given by the club and return
to Country B.
25. In this scenario, the Chamber recalled its long-standing jurisprudence, according to
which only a breach or misconduct which is of a certain severity justifies the
termination of a contract without prior warning. In other words, only when there are
objective criteria which do not reasonably permit to expect the 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 assure 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 be an ultima ratio.
26. With the above in mind, the Chamber reiterated that the Respondent did not present
any position or evidence related to the reasons behind the termination of the
contract.
27. As a result, the Chamber decided that on 19 January 2022, the Respondent terminated
the contract without just cause.
ii. Consequences
28. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by
the Respondent.
29. By doing so, the Chamber started with the calculation of the amount of compensation
payable to the player by the club in the case at stake. In doing so, 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.
30. In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained 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,
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the Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
31. 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.
32. Bearing in mind the foregoing as well as the claim of the player, the Chamber
proceeded with the calculation of the monies payable to the player under the terms
of the contract from the date of its unilateral termination until its end date.
Consequently, the Chamber concluded that the amount of USD 300,000 (i.e. 10
salaries [from February 2022 to November 2022] of USD 27,272 each plus USD 27,280)
serves as the basis for the determination of the amount of compensation for breach
of contract.
33. In continuation, the Chamber verified as to whether the player 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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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.
34. Indeed, the player found employment with the Country A club, C for four months. In
accordance with the pertinent employment contract, the player was entitled to USD
1,000 per month. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of USD 4,000 that is, 4 times USD 1,000.
35. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an amount corresponding to three monthly
salaries as additional compensation should the termination of the employment
contract at stake be due to overdue payables. In the case at hand, the Chamber
confirmed that the club terminated the contract, and therefore decided that the
player is not entitled to receive additional compensation.
36. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the
amount of USD 296,000 to the player (i.e. USD 300,000 minus USD 4,000), which was
to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
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37. Lastly, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of date of claim, i.e. 17 February 2022 until the
date of effective payment.
iii. Compliance with monetary decisions
38. Finally, taking into account the applicable Regulations, the Chamber referred to art.
24 par. 1 and 2 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.
39. In this regard, the DRC highlighted 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.
The overall maximum duration of the registration ban shall be of up to three entire
and consecutive registration periods.
40. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay
the full amount due (including all applicable interest) to the Claimant within 45 days
of notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become
immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of
the Regulations.
41. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
42. The DRC 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. 24
par. 8 of the Regulations.
d. Costs
43. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs
were to be imposed on the parties.
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44. Likewise and for the sake of completeness, the Chamber recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall
be awarded in these proceedings.
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, B, has to pay to the Claimant, the following amount:
- USD 296,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 17 February 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not made within 45 days of notification
of this decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum
duration the ban shall be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still
not made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in
accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and
Transfer of Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules).
CONTACT INFORMATION
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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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