Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 14 June 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Tom is lav Kas alo (Croatia), Member
Wouter Lam brecht (Belgium ), 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 arisen between the parties
I.
Facts of the cas e
1.
On 20 July 2018, the player of Country B, Player A (hereinafter: the Claimant), and
the club of Country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract).
2.
According to the Claimant, he signed a different version of the contract
(hereinafter: the alleged contract) than the version that the Respondent registered
(hereinafter: the registered contract) at the Football Federation of Country D
(Football Federation of Country D). However, the Claimant explained that he is not
in possession of a signed copy of the alleged contract, and only has an unsigned
version of said document.
3.
More in particular, the Claimant explained that the last page of the registered
contract was the same that he signed on 20 July 2018, but his initials on the other
pages had been forged and the salary and duration of the contract had been
changed. According to him, the Respondent used the last page containing his
signature and stapled it to an amended version of the contract.
4.
According to art. 5.1 the alleged contract, which was to run from 1 July 2018 until
30 June 2020, the Claimant would be entitled to 24 monthly salaries of currency of
Country D (currency of Country D) 220,460 net payable until the end of each
month, and a sign-on fee of currency of Country D 749,900 payable as follows:
a. currency of Country D 253,865 net, payable on the date of signing the
contract;
b. currency of Country D 248,017.50 net, payable in February 2019;
c. currency of Country D 248,017.50 net, payable in May 2019.
Furthermore, the Claimant was entitled to three lump-sum payments as follows:
d. currency of Country D 390,035 net, payable in October 2019;
e. currency of Country D 250,250 net, payable in February 2020;
f. currency of Country D 250,250 net, payable in May 2020.
5.
In addition, in accordance with art. 5.2 of the alleged contract, the Claimant would
be entitled to a monthly amount of currency of Country D 4,000 for housing and
currency of Country D 500 for electricity, as well as two round-trip flight tickets
City E-City F per season.
6.
In accordance with the registered contract, valid as from 1 August 2018 until 30
June 2020, the Claimant was entitled to a sign-on fee of currency of Country D
550,000, payable in instalments of currency of Country D 200,000 (2x) and currency
of Country D 150,000 on the above-mentioned dates (a., b. and c.), an amount of
currency of Country D 600,000, payable in 3 instalments of currency of Country D
200,000 on the above-mentioned dates (d., e. and f.), as well as a bonus of
Player A, Country B / Club C, Country D
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currency of Country D 150,000 in case he would play 20 matches for the
Respondent. The other financial provisions are equal to those stipulated in the
alleged contract.
7.
According to art. 8 of both versions of the contract, “the present contract can be
terminated prematurely:
- Upon mutual agreement between the parties;
- In case of force majeure;
- In case of gross misconduct by one of the parties or for a just cause in the sense
of the Regulations on the Status and Transfer of Players of the Football
Federation of Country D and FIFA;
(…)
- in the event of premature unilateral termination not caused by the gross
misconduct of the other party or by a case of force majeure, and in this case only,
damages the amount of which equals the amount of the remuneration
corresponding to the period from the date of termination until the term fixed by
this contract, will be due to the party that is not at the origin of the unilateral
termination” (free translation from French).
8.
Finally, art. 14 of both versions of the contract stipulates the following:
“In case of dispute and/or litigation arising from the execution and/or
interpretation of the clauses of this contract, the parties are obliged to use all the
means and procedures for an amicable settlement of the dispute.
In case of failure, the dispute is submitted by either party to the Dispute
Resolution Chamber of the Football Federation of Country D. Decisions of the
Dispute Resolution Chamber of the Football Federation of Country D may be
appealed in accordance with the provisions of the Football Federation of Country
D Statutes and Regulations.” (free translation from French).
9.
On 14 September 2018, the representative of the Claimant sent a default notice to
the Respondent, requesting payment of the first instalment of the sign-on fee as
well as the salary and housing allowance for the months of July and August 2018,
granting a deadline of 10 days.
10.
Furthermore, on 18 September 2018, the representative of the Claimant sent a
communication to the Respondent, requesting a copy of the alleged contract
within the next 3 days.
11.
The Claimant explained that, on 18 September 2018, he was not allowed to train
with the team and was ordered to run circles around the pitch. Therefore, on 19
September 2018, his representative sent a further communication to the
Respondent, requesting to reinstate the Claimant to the first team within 24 hours.
Player A, Country B / Club C, Country D
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However, according to the Claimant, on 19 and 20 September 2018, he was not
allowed to train with the team and was told that his contract had been
terminated.
12.
Consequently, on 20 September 2018, the Claimant’s representative sent another
communication to the Respondent, asking to clarify the Claimant’s situation. On
the same day, according to the Claimant, he was informed that he was no longer
part of the team and was deregistered because the Respondent had signed 10 new
players.
13.
As a consequence, the Claimant’s representative sent another correspondence to
the Respondent on 21 September 2018, requesting a confirmation that the
Claimant was still employed by the Respondent and was allowed to train with the
team, as well as a copy of the alleged contract, by no later than 24 September
2018. Equally, the representative sent a letter to the Football Federation of
Country D requesting a copy of the alleged contract.
14.
On 21 September 2018, the Respondent sent a letter to the Claimant, invoking his
poor performance and offering to settle the matter. In reply thereto, the
Claimant’s representative sent a correspondence on 24 September 2018, refuting
the statements of the Respondent and requesting to be provided with a copy of
the alleged contract within 48 hours, while reminding the Respondent that the
salaries remained unpaid.
15.
On the same date, the Claimant personally went to the office of the Football
Federation of Country D to obtain a copy of the alleged contract. According to
him, he received a copy of a different contract (i.e. the registered contract).
16.
On 25 September 2018, according to the Claimant, the Respondent informed him
that he was not part of the team and was deregistered. Consequently, on 26
September 2018, the Claimant’s representative sent a final communication to the
Respondent, pointing out the alleged forgery and requesting within 7 days:
- a confirmation in writing that the Claimant was still part of the team and
allowed to join training sessions;
- a confirmation that the Claimant was registered and authorized to play for
the team;
- payment of outstanding salaries and housing allowance (total currency of
Country D 703,785).
17.
As no reply or payment followed and considering that the September salary fell
due on 1 October 2018, the Claimant’s representative informed the Respondent in
writing on 4 October 2018 of the unilateral termination of the contract, invoking
just cause.
Player A, Country B / Club C, Country D
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18.
The Claimant lodged a claim for breach of contract without just cause and
requested the payment of the following amounts (based on the alleged contract):
- Outstanding remuneration in the amounts of currency of Country D 915,245
(sign-on fee plus salaries of July, August, September 2018) and currency of
Country D 13,500 (housing allowance July, August, September 2018) plus 5%
interest p.a. as from the relevant due dates;
- Reimbursement of flight tickets in the amounts of EUR 305.59 and currency of
Country D 2,358.20 plus 5% interest p.a. as from 20 July 2018 and 5 October 2018
respectively;
- Compensation for breach of contract in the amount of currency of Country D
6,091,535 plus 5% interest p.a. as from 4 October 2018;
- Additional compensation in accordance with the specificity of sport in the
amount of currency of Country D 1,751,695 plus 5% interest p.a. as from 4
October 2018.
19.
Alternatively, should the DRC come to the conclusion that it can only take into
account the registered contract, the Claimant requested the payment of the
following amounts:
- Outstanding remuneration in the amounts of currency of Country D 861,380
(sign-on fee plus salaries of July, August, September 2018) and currency of
Country D 13,500 (housing allowance July, August, September 2018) plus 5%
interest p.a. as from the relevant due dates;
- Reimbursement of flight tickets in the amounts of EUR 305.59 and currency of
Country D 2,358.20 plus 5% interest p.a. as from 20 July 2018 and 5 October 2018
respectively;
- Compensation for breach of contract in the amount of currency of Country D
5,674,160 plus 5% interest p.a. as from 4 October 2018;
- Additional compensation in accordance with the specificity of sport in the
amount of currency of Country D 1,610,260 plus 5% interest p.a. as from 4
October 2018.
20.
The Claimant, in support of his argument that he had just cause to terminate the
contract, referred to CAS jurisprudence and argued that the Respondent failed to
comply with its main obligation, i.e. the payment of salaries, and that his
fundamental rights to be registered and to have access to training were not
respected by the Respondent.
21.
Along with his claim, the Claimant provided two declarations of a public notary,
according to which the Claimant was not allowed to join the team’s training on 25
and 28 September 2018.
22.
In addition, by not providing him with a copy of the alleged contract and having
tried to pressure him into signing certain documents in the language of Country D,
the Claimant maintained that the Respondent was not interested in his services
and abused him in the sense of art. 14 par. 2 RSTP.
Player A, Country B / Club C, Country D
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23.
In its response to the claim, the Respondent challenged FIFA’s competence to
adjudicate the present matter.
24.
In support of its allegation, the Respondent referred to art. 14 of the contract
allegedly providing that the parties contractually agreed to submit all disputes to
the “Chambre Nationale de Résolution des Litiges” (“National Dispute Resolution
Chamber”, free translation from French).
25.
Moreover, the Respondent provided various arguments and evidence in order to
prove that “there is a Chamber inside the Football Federation of Country D, that it
is an independent national arbitration tribunal, and which guarantees fair
proceedings and respect to the principle of equal representation of players and
clubs”.
26.
The Respondent submitted the Statutes of the Football Federation of Country D
and the Regulations of the NDRC of the Football Federation of Country D. Art. 5 of
said Regulations stipulates the following (free translation from French):
“The NDRC is composed of the following members: a) a President, a Vice President,
and a Substitute Vice President appointed by the Football Federation of Country D
Executive Committee; b) a representative of the clubs of the LNFP, a representative
of the clubs of the LNFA, a representative of the players, a representative of the
coaches, a representative from Women’s Football, a representative from futsal, a
representative of the doctors, an administrative representative of the Football
Federation of Country D.”
27.
As to the substance, according to the Respondent, the registered contract is the
only validly concluded contract to be taken into account. As to the Claimant’s
allegation of forgery, the Respondent argued that he has not provided any
evidence in this regard and, in any event, the DRC is not competent to decide upon
criminal matters such as forgery.
28.
With respect to the Claimant’s requests to receive a copy of the contract, the
Respondent sustained that it had not refused to give it to him, but that it had
simply referred him to the Football Federation of Country D, to which the contract
was sent for registration purposes.
29.
In addition, the Respondent denied the Claimant’s allegations related to its
abusive conduct, the Claimant being left to train alone and the aggravating
circumstances described by him. The Respondent explained that its coach had
decided to send the Claimant to train with its second team, which is an order that
must be followed by the Claimant in accordance with the contract. In
continuation, the Respondent argued that it proceeded with the de-registration of
Player A, Country B / Club C, Country D
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the Claimant so it would be able to register new players with lower salaries in
order to revert its alleged delicate financial situation.
30.
Furthermore, the Respondent explained that, after having tried several times to
reach an amicable termination of the contract to no avail, on 17 September 2018 it
notified the Claimant of the termination of the contract invoking poor
performance and engaging to pay his salaries until 30 June 2019 in accordance
with art. 8 par. 5 of the contract. However, according to the Respondent, the
Claimant refused to receive its letter.
31.
According to the Respondent, on the following day, i.e. 18 September 2018, it sent
its termination letter to the Football Federation of Country D. Later, on 21
September 2018, the Respondent sent an email to the Claimant’s representative,
reiterating the offer for an amicable termination of the contract. Eventually, in its
reply to the claim, while acknowledging that no payment had been made to the
Claimant, the Respondent “accepts that the Contract was terminated on 4th
October 2018, as the [Claimant] alleged in his claim.”
32.
Finally, as to the player’s request for relief, the club argued that he is only entitled
to receive the relevant outstanding amounts for the months of August and
September 2018, considering that the contract entered into force on 1 August
2018. With regard to the compensation for breach of contract, the club argued
that it should be limited to the remaining salaries of the 2018/2019 season. In
continuation, the club argued that the alleged egregious circumstances have not
been proven, and therefore no additional compensation shall be granted to the
player (neither following art. 17 RSTP nor in accordance with the specificity of
sport). As to the interest claimed by the player, the club argued that no interest
can be granted as there is no such provision in the contract. In case the DRC
decides to grant interest, the club maintained that the rate of the Central Bank of
Country D (2,25%) shall apply.
33.
In his replica, the Claimant insisted on the competence of the FIFA DRC. In
particular, the Claimant pointed out that he did not explicitly opt in writing that
the NDRC in Country D would be the competent body to adjudicate on possible
disputes. The contract signed by the parties is the standard players’ contract
unilaterally imposed by the Football Federation of Country D, the content of which
cannot be amended by the parties.
34.
In addition, the Claimant sustained that the NDRC of Country D does not
guarantee fair proceedings and its composition does not respect the principle of
equal representation between players and clubs. More in particular, the members
mentioned under art. 5a) of the Regulations of the NDRC are chosen by the
Player A, Country B / Club C, Country D
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Football Federation of Country D Executive Committee. Furthermore, out of 8
members mentioned under art. 5b) of the Regulations of the NDRC, there is only 1
player representative.
35.
Finally, the Claimant added that the Football Federation of Country D Executive
Committee is composed of club representatives only (art. 25 of the Football
Federation of Country D Statutes), who are in turn appointed by the Football
Federation of Country D General Assembly, which is predominantly consisting of
club representatives (art. 18 Football Federation of Country D Statutes).
36.
As to the substance, the Claimant repeated his arguments related to forgery and
abusive conduct. Furthermore, the Claimant denied that any “negotiations” had
taken place to find an amicable solution. He sustained that it was rather the
Respondent trying to get rid of him and when he did not agree, the Respondent
decided to terminate the contract on 17 September 2018. The Claimant
acknowledged having refused to receive the Respondent’s termination letter, as it
was drafted in a language he does not understand and he had instructed the
Respondent to send all communications to his representative.
37.
Furthermore, the Claimant argued that the Respondent’s alleged delicate financial
situation may not serve as a reason for non-payment of his salaries. According to
him, the Respondent hired 10 new players while he was still there, and continued
to hire 3 new players during the winter transfer period, while still not paying him
his financial dues. The Claimant maintained that this element is an extra
aggravating circumstance. Finally, the Claimant submitted an audio recording of
an alleged conversation between him and an employee of the Respondent on 17
September 2018, while reiterating his financial requests.
38.
Finally, in an unsolicited correspondence dated 13 March 2019, the player
informed FIFA that he had received a correspondence from the Football
Federation of Country D on the same date, apparently including a claim in
language of Country D from the club against the player lodged in front of the
NDRC of Country D.
39.
Despite having been requested to submit its final comments, the Respondent did
not make any further statements.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
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 9 October
2018. Consequently, the 2018 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3, par. 1 of the
Procedural Rules and confirmed that, in principle, 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 2019) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player of Country B and a club
of Country D.
3.
However, firstly, the Chamber was eager to emphasize that, contrary to the
information contained in FIFA’s letter dated 11 June 2019 by means of which the
parties were informed of the composition of the Chamber, the member, X, and the
member, XX, had to cancel their attendance to the relevant meeting and thus did
not participate in the deliberations in the case at hand. Consequently, the Dispute
Resolution Chamber adjudicated the case in presence of three members in
accordance with art. 24 par. 2 of the 2019 edition of the Regulations on the Status
and Transfer of Players.
4.
In continuation, the Chamber acknowledged that the Respondent contested the
competence of FIFA, arguing that the matter shall be submitted to the competence
of the “Chambre de résolution des litiges de la Fédératoin de Fooball du Pays D”
(hereinafter: the NDRC of Country D) on the basis of art. 14 of the contract, which
was drafted as follows:
“In case of dispute and/or litigation arising from the execution and/or
interpretation of the clauses of this contract, the parties are obliged to use all the
means and procedures for an amicable settlement of the dispute.
In case of failure, the dispute is submitted by either party to the Dispute
Resolution Chamber of the Football Federation of Country D. Decisions of the
Dispute Resolution Chamber of the Football Federation of Country D may be
appealed in accordance with the provisions of the Football Federation of Country
D Statutes and Regulations.” [free translation from French].
Player A, Country B / Club C, Country D
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5.
On the other hand, the Chamber noted that the Claimant insisted on the
competence of the FIFA DRC to adjudicate on his claim against the Respondent, and
sustained that the NDRC of Country D is not an independent arbitration tribunal
guaranteeing fair proceedings and respecting the principle of equal representation
of players and clubs.
6.
Taking into account all the above, the Chamber emphasised that, in accordance
with art. 22 lit b) of the 2019 edition of the Regulations on the Status and Transfer
of Players, it is, in principle, competent to deal with employment-related disputes of
an international dimension; the parties may, however, explicitly opt in writing for
any disputes arisen between them to be decided by an independent arbitration
tribunal guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs that has been established at national level
within the framework of the association and/or a collective bargaining agreement.
Any such arbitration clause must be included either directly in the contract or in a
collective bargaining agreement applicable on the parties. With regard to the
standards to be imposed on an independent arbitration tribunal existing at national
level, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005.
Equally, the members of the Chamber referred to the principles contained in the
FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which
came into force on 1 January 2008.
7.
In this respect, the DRC noted the Claimant’s allegations, according to which, first of
all, he did not explicitly opt in writing that the NDRC in Country D would be the
competent body to adjudicate on possible disputes. The contract signed by the
parties is the standard players’ contract unilaterally imposed by the Football
Federation of Country D, the content of which cannot be amended by the parties.
8.
In continuation, the Chamber noted that the Claimant held that the NDRC of
Country D does not guarantee fair proceedings and its composition does not respect
the principle of equal representation between players and clubs. More in particular,
the members mentioned under art. 5a) of the Regulations of the NDRC are chosen
by the Football Federation of Country D Executive Committee. Furthermore, out of
8 members mentioned under art. 5b) of the Regulations of the NDRC, there is only 1
player representative.
9.
In addition, the Claimant added that the Football Federation of Country D Executive
Committee is composed of club representatives only (art. 25 of the Football
Federation of Country D Statutes), who are in turn appointed by the Football
Federation of Country D General Assembly, which is predominantly consisting of
club representatives (art. 18 Football Federation of Country D Statutes).
Player A, Country B / Club C, Country D
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10. Within this context, the Chamber noted the Respondent’s allegations as to how the
parties have opted for the NDRC of Country D to be the competent body for any
dispute in relation to the employment contract and that “there is a Chamber inside
the Football Federation of Country D, that is an independent national arbitration
tribunal, and which guarantees fair proceedings and respect to the principle of
equal representation of players and clubs”.
11. With the aforementioned in mind, the members of the Chamber first emphasised
that, in the present matter, indeed it would appear that the parties agreed, by
means of clause 14 of the contract, that the disputes arisen between them in
relation to the employment contract would be resolved by the NDRC of Country D.
12. Nevertheless, and in accordance with said art. 22 lit. b) of the Regulations, the DRC
emphasised that it needed to analyse whether the entire dispute resolution system
within the Football Federation of Country D, i.e. the NDRC of Country D, actually
complies with the requirements as mentioned in point II./6. above. In so doing, the
members of the Chamber recalled that, in accordance with art. 12 par. 3 of the
Regulations, it is for the Respondent to prove that the NDRC of Country D is an
independent tribunal guaranteeing fair proceedings and which respects the
principle of equal representation of players and clubs.
13. The DRC further stressed that the principle of equal representation of players and
clubs is one of the very fundamental elements to be fulfilled, in order for a national
dispute resolution chamber to be recognised as such. Indeed, this prerequisite is
mentioned in the Regulations, in the FIFA Circular no. 1010 as well as in art. 3 par. 1
of the NDRC Regulations, which illustrates the aforementioned principle as follows:
“The NDRC shall be composed of the following members, who shall serve a fouryear renewable mandate: a) a chairman and a deputy chairman chosen by consensus
by the player and club representatives (…); b) between three and ten player
representatives who are elected or appointed either on proposal of the players’
associations affiliated to FIFPro, or, where no such associations exist, on the basis of
a selection process agreed by FIFA and FIFPro; c) between three and ten club
representatives (…).” In the same vein, the FIFA Circular no. 1010 states the
following: “The parties must have equal influence over the appointment of
arbitrators. This means for example that every party shall have the right to appoint
an arbitrator and the two appointed arbitrators appoint the chairman of the
arbitration tribunal (…). Where arbitrators are to be selected from a predetermined
list, every interest group that is represented must be able to exercise equal influence
over the compilation of the arbitrator list”.
14. Taking into account the above, the DRC entered into the examination of the
“Réglement de la Chambre Nationale de Résolution des Litiges” (hereinafter: the
Player A, Country B / Club C, Country D
11/22
NDRC of Country D Regulations), entered into force as from 1 August 2017, which
was submitted by the Respondent during the course of the investigation of the
matter at stake.
15. In particular, the Chamber observed that Article 3, 5 and 10 of the NDRC of Country
D Regulations read as follows:
"Article 3: Jurisdiction of the NDRC of Country D
The NDRC of Country D is competent:
(a) For disputes between clubs, clubs and players relating to the maintenance of
contractual stability
(…)
Article 5: Composition:
The NDRC of Country D is composed of the following members:
a) A President, a Vice-President, and a substitute Vice-President appointed by the
Football Federation of Country D Executive Committee
b)
- A representative of the clubs of the LNFP
- A representative of the clubs of the LNFA clubs
- A player representative
- A representative of the coaches' group
- A representative of the Women's Football group
- A representative of the futsal group
- A representative of the group of Doctors
- An administrative representative of the Football Federation of Country D
Representative members attend meetings of the NDRC of Country D when the
dispute is of their concerns.
Article 10: Quorum
The NDRC of Country D can only meet validly in the presence of at least three
members, including the president or vice-president” [free translation from French].
16. Furthermore, the DRC analysed the contents of the Statutes of the Football
Federation of Country D provided by the Respondent. In particular, the Chamber
referred to art. 69 of the Statutes of the Football Federation of Country D, which
stipulates, inter alia, that “the members of the NDRC of Country D are designated
by the Executive Committee of the Football Federation of Country D” [free
translation from French].
17. In this respect, the DRC noted that, from Article 5 of the NDRC of Country D
Regulations as provided by the Respondent, the principle of equal representation of
Player A, Country B / Club C, Country D
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players and clubs is not respected with regard to the appointment of the President,
the Vice-President and the substitute Vice-President, since from the wording of the
aforementioned NDRC of Country D Regulations, they appear to always be
designated by the Executive Committee of the Football Federation of Country D,
which appears to be composed of club representatives only. In addition, the DRC
noted that among the other 8 members of the NDRC of Country D, there is only 1
player representative.
18. What is more, and with reference to art. 69 of the Statutes of the Football
Federation of Country D, the Chamber also noted that it would even appear that all
the members of the NDRC of Country D are designated by the Executive Committee
of the Football Federation of Country D.
19. On account of all the aforementioned circumstances, the members of the Chamber
unanimously concluded that the Respondent failed to demonstrate, to the DRC’s
satisfaction, that the NDRC of Country D is indeed an independent arbitration
tribunal respecting the principle of equal representation of players and clubs, which
is a fundamental prerequisite that an NDRC must comply with. As such, the DRC
concluded that the Respondent’s objection towards the competence of FIFA to deal
with the present matter has to be rejected, and that the Dispute Resolution
Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status
and Transfer of Players, to entertain the claim of the player as to the substance.
20. The competence of the Chamber having been established, the Chamber analysed
which edition of the Regulations on the Status and Transfer of Players 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 (editions June 2018 and 2019), and considering that the present matter
was submitted to FIFA on 9 October 2018, the June 2018 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
21. Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter.
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. In particular, the Chamber
recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA
may use, within the scope of proceedings pertaining to the application of the
Regulations, any documentation or evidence generated or contained in the Transfer
Matching System (TMS).
Player A, Country B / Club C, Country D
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22. In this respect, the Chamber noted that it was undisputed between the parties that
they concluded an employment contract on 20 July 2018. However, the Chamber
took note of the dissent between the parties as to which version of the employment
contract was valid and binding between them. Whereas the Claimant maintained
that the alleged contract was the valid and binding version, the Respondent argued
that the registered contract was the only validly concluded contract to be taken into
account.
23. In this regard, the members of the Chamber took note of the argumentation of the
Claimant that the Respondent used the last page of the contract signed by the
parties on 23 July 2018 and stapled it to an amended version of the contract
containing a different period of validity and different remuneration due to him.
Furthermore, the Claimant argued that the initials on the first four pages of the
registered contract were forged and stated that he was in possession of the
hardcopy of the document.
24. Having analysed the parties’ positions, 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 respective burden of proof. The
application of the said principle in the present matter led the members of the
Dispute Resolution Chamber to conclude that it was for the Claimant to prove that
the alleged contract, on the basis of which he claims outstanding remuneration and
compensation for breach of contract from the Respondent, indeed existed.
25. In this respect, the DRC deemed it important to highlight that, in order for an
employment contract to be considered as valid and binding, it must bear the
signature of both the employer and the employee. In this respect, the DRC observed
that the Claimant was unable to provide the Chamber with a copy of the alleged
contract duly signed by both parties.
26. In continuation, having duly taken note of the documentation presented by the
parties, the members of the Chamber held that, in order for the Chamber to be able
to assume that the alleged contract was indeed the contract that had been signed
by the parties, it had to be established, beyond doubt, by documentary evidence,
that this was the validly concluded version of the employment contract. In general,
the members of the Chamber held that they could not assume that the alleged
contract had been concluded by and between the parties simply based on
circumstances which, in general, may be likely but are not certain to indicate the
signing of said version of the contract.
27. In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did not prove to the Chamber’s comfortable
Player A, Country B / Club C, Country D
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satisfaction that the Respondent and the Claimant had validly concluded the
alleged contract.
28. As a consequence, the DRC decided that, since the Claimant had not been able to
prove that the alleged contract had validly been concluded between himself and
the Respondent, it could only take into account the registered contract, which was
duly signed by the parties, registered at the Football Federation of Country D and
available in the Transfer Matching System (TMS).
29. Having established the above, the Chamber took due note of the financial
provisions of the registered contract, as outlined in point I.6. above. Equally, the
DRC noted that, on 9 October 2018, the Claimant lodged a claim against the
Respondent arguing that he had terminated the employment contract with just
cause on 4 October 2018 based on the fact that the Respondent had not complied
with its financial obligations, his access to training had been denied as well as that
he was deregistered by the Respondent, despite several default notices sent to the
Respondent prior to the termination of the contract.
30. The DRC observed that as a consequence the Claimant asked to be awarded the
aforementioned outstanding dues along with the payment of compensation for
breach of the employment contract.
31. The Chamber acknowledged that the Respondent, for its part, denied the
Claimant’s allegations related to its conduct, the Claimant being left to train alone
and the aggravating circumstances described by him. On the contrary, the Chamber
took due note that the Respondent blatantly admitted that no payment had been
made to the Claimant as well as that the Claimant was deregistered in order for the
Respondent to be able to register new players with lower salaries.
32. Furthermore, the Chamber acknowledged that the Respondent, while first arguing
that it had notified the Claimant of the termination of the contract on 17
September 2018, eventually accepted that the contract was terminated on 4
October 2018, as alleged by the Claimant in his claim.
33. In view of the above, the DRC deemed that it remained uncontested that the
Claimant was deregistered by the Respondent on or around 20 September 2018 as
well as that the Respondent had not paid any remuneration to the Claimant during
the duration of their contractual relationship.
34. As to the Claimant’s allegation that he was denied access to training, the members
of the Chamber took note of the Respondent’s reply that the Claimant was
instructed to train with the second team, decision which must be respected by the
Claimant in accordance with the contract, but that “he was never not excluded from
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practice”. Equally, the members of the Chamber took note of the documentation
provided by the Claimant in support of his allegation.
35. In particular, based on the declarations of the public notary, the DRC could establish
that the Claimant had indeed been denied access to training on at least two
occasions, i.e. on 25 and 28 September 2018.
36. Consequently, the Chamber was of the opinion that such situation might have led
the Claimant to legitimately believe that the Respondent was no longer interested
in his services. In addition, the DRC stressed that by its actions, namely by
deregistering the Claimant and denying him access to training, the Respondent, for
all intents and purposes, effectively deceived the Claimant.
37. In view of the above, the members of the DRC considered important to point out, as
it has been previously sustained by the DRC, that among a player’s fundamental
rights under an employment contract, is not only his right to a timely payment of
his remuneration, but also his right to access training and to be given the possibility
to compete with his fellow team mates in the team’s official matches. In this
context, the DRC emphasized that in principle, by deregistering a player, a club is
effectively barring, in an absolute manner, the potential access of a player to
competition and, as such, violating one of his fundamental rights as a football
player. What is more, the Chamber insisted that the Respondent, by denying the
Claimant access to training on at least two occasions, severely prejudiced the
Claimant.
38. In addition to the above, taking into account that the Respondent acknowledged
that it had not paid any amount to the Claimant without putting forward any valid
reason to justify said behaviour, the DRC considered that the contractually agreed
remuneration had to be considered outstanding up until the date of termination of
the contract.
39. Consequently, the DRC vigorously highlighted that the Respondent had not
remedied the default in payments, access to training and registration of the
Claimant, in spite of having been given the opportunity by the Claimant to do so on
various occasions. Furthermore, the Chamber duly noted that on the date of the
termination of the contract, i.e. 4 October 2018, three monthly amounts as well as
the first instalment of the sign-on fee remained outstanding, for a total amount of
currency of Country D 874,880.
40. Considering all the above-mentioned circumstances, the Chamber concluded that
the Claimant had just cause to unilaterally terminate the contract and that, as a
result, the Respondent is to be held liable for the early termination of the
employment contract.
Player A, Country B / Club C, Country D
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41. Bearing in mind the previous considerations, the Chamber turned its attention to
the consequences of the early termination of the contract with just cause by the
Claimant.
42. First of all, the DRC concurred that the Respondent must fulfil its obligations as per
the employment contract up and until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”. Consequently,
the DRC decided that the Respondent is liable to pay to the Claimant outstanding
remuneration in the amount of currency of Country D 874,880, consisting of three
monthly salaries of currency of Country D 220,460 each as well as three months of
rent and electricity of currency of Country D 4,500 each for the months of July,
August and September 2018 as well as the first instalment of the sign-on fee of
currency of Country D 200,000 that was payable on the date of signing the contract.
43. In this respect, although the employment contract started running on 1 August 2018
and was meant to expire on 30 June 2020 (i.e. 23 months), the members of the
Chamber took into account that the Claimant was entitled to 24 monthly payments
in accordance with clause 5.1 a) of the contract. Consequently, in view of the fact
that the contract was signed already in July 2018, the members of the Chamber
considered that one monthly payment should be allocated to the month of July
2018.
44. Moreover, with regard to the Claimant’s claim pertaining to flight tickets, the
Chamber noted that the contract does not mention a specific amount to be paid to
the Claimant in this regard, but does provide for two round-trip flight tickets City ECity F per season for the Claimant in clause 5.2. Considering that the Claimant
provided evidence that the amounts of EUR 305.59 and currency of Country D
2,358.20 were indeed spent by him on flight tickets, the DRC decided that the
Respondent must reimburse to the Claimant the aforementioned amounts.
45. In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. as of the respective
due dates of the aforementioned sums until the date of effective payment.
46. Furthermore, the DRC 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 the aforementioned outstanding
remuneration.
47. In this context, the Chamber outlined that, in accordance with the 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
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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.
48. 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.
Upon careful examination of the employment contract concluded between the
Claimant and the Respondent, the members of the Chamber noted that, according
to art. 8 of the contract, “the present contract can be terminated prematurely:
- Upon mutual agreement between the parties;
- In case of force majeure;
- In case of gross misconduct by one of the parties or for a just cause in the sense
of the Regulations on the Status and Transfer of Players of the Football
Federation of Country D and FIFA;
- (…)
- In the event of premature unilateral termination not caused by the gross
misconduct of the other party or by a case of force majeure, and in this case only,
damages the amount of which equals the amount of the remuneration
corresponding to the period from the date of termination until the term fixed by
this contract, will be due to the party that is not at the origin of the unilateral
termination” (cf. point I.7 above.)
49. The Chamber duly analysed the contents of said clause and noted that it expressly
lists four different options for the premature termination of the contract, namely:
the mutual agreement between the parties, the case of force majeure, the gross
misconduct by one of the parties and, lastly, the just cause provided in the
Regulations.
50. In continuation, the Chamber acknowledged that the relevant clause did not
include a precise and specific amount of compensation, however, it clearly provided
for a determinable amount of compensation payable to the party that is not at the
origin of the unilateral termination, except where such termination is caused either
by the gross misconduct of the other party or by force majeure, which amount
corresponds to the remaining value of the employment contract, which was not
considered disproportionate by the Chamber.
Player A, Country B / Club C, Country D
18/22
51. Moreover, the DRC wished to recall that, in the present dispute, the Claimant had
indeed prematurely terminated the contract with just cause and, as such, the
aforementioned clause is in principle applicable for the purpose of the
determination of the compensation for breach of contract payable by the
Respondent to the Claimant.
52. On account of the above, the parties having contractually agreed on the
compensation payable in the event of unilateral termination with just cause and
such compensation not being deemed disproportionate, the Dispute Resolution
Chamber concluded that the provision contained under article 8 (fifth bullet point)
of the contract has to be considered as valid and fully effective, i.e. the amount of
compensation provided for in said article shall be awarded to the Claimant.
Furthermore, for these reasons, the Chamber concurred that any remuneration
under the new employment contracts concluded by the Claimant cannot be taken
into account in the case at hand.
53. In this regard, the Chamber established that the remaining value of the relevant
employment contract amounts to currency of Country D 5,674,160 relating to the
Claimant’s financial entitlements under said contract as from October 2018 until
June 2020.
54. Taking into account all of the above, the Chamber decided that the Respondent has
to pay to the Claimant the total amount of currency of Country D 5,674,160 as
compensation for breach of contract.
55. 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 amount of
compensation as of the date on which the claim was lodged, i.e. 9 October 2018,
until the date of effective payment.
56. The DRC concluded its deliberations in the present matter establishing that any
further claim lodged by the Claimant was rejected.
57. Furthermore, taking into account the consideration under number II./20. 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.
58. 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
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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.
59. 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.
60. Finally, the Chamber recalled that the above-mentioned sanction 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 Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant outstanding remuneration in
the amounts of currency of Country D 877,238.20 and EUR 305.59 plus interest as
follows:
- 5% p.a. on the amount of currency of Country D 200,000 as from 23 July 2018
until the date of effective payment;
- 5% p.a. on the amount of currency of Country D 224,960 as from 1 August 2018
until the date of effective payment;
- 5% p.a. on the amount of currency of Country D 224,960 as from 1 September
2018 until the date of effective payment;
- 5% p.a. on the amount of currency of Country D 224,960 as from 1 October 2018
until the date of effective payment;
- 5% p.a. on the amount of EUR 305.59 as from 18 July 2018 until the date of
effective payment;
- 5% p.a. on the amount of currency of Country D 2,358.20 as from 5 October 2018
until the date of effective payment.
4.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of currency of Country D 5,674,160 plus 5% interest p.a. on said
amount as from 9 October 2018 until the date of effective payment.
5.
Any further claim lodged by the Claimant is rejected.
6.
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 points 3 and 4 above.
7.
The Respondent shall provide evidence of payment of the due amounts in
accordance with points 3 and 4 above to FIFA to the e-mail address
[email protected], duly translated, if need be, into one of the official FIFA languages
(English, French, German, Spanish).
8.
In the event that the amounts due plus interest in accordance with points 3 and 4
above are 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 amounts are paid and for the maximum duration of three entire
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21/22
and consecutive registration periods (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
9.
The ban mentioned in point 8 above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
10.
In the event that the aforementioned sums plus interest are 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 relating to the m otiv ated decis ion (legal remedy):
According to art. 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, a
copy of which we enclose hereto. 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 (cf. point 4 of the
directives).
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
Encl.: CAS directives
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