Labour Disputes
Texto da decisão
REF FPSD-4221
Decision of the
Dispute Resolution Chamber
passed on 9 February 2022
regarding an employment-related dispute concerning the player Yuki Aizu
BY:
Alexandra Gomez-Bruinewoud (Uruguay/the Netherlands)
CLAIMANT:
Yuki Aizu, Japan
Represented by Ms. Nan Sato
RESPONDENT:
FC Linkoping City, Sweden
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I.
Facts of the case
1.
According to the information available in the Transfer Matching System (TMS), on 19 March
2021, the Japanese player Yuki Aizu (hereinafter: the player or the Claimant) and the Swedish
club FC Linkoping City (hereinafter: the club or the Respondent) concluded an employment
contract valid as from 1 April 2021 to 1 December 2021 (hereinafter: the contract).
2.
According to the contract, the player was entitled inter alia to a salary of SEK 14,300 per
month “before tax”. The parties do not dispute the contents of the contract.
3.
No version of the contract on file bears a jurisdiction clause.
4.
On 17 September 2021, the player put the club in default of payment of the salaries between
May and August 2021, amounting to SEK 57,200. The player granted the club until 4 October
2021 to cure its breach, to no avail.
5.
On 4 October 2021, the player terminated the contract, following which he remained
unemployed.
II. Proceedings before FIFA
6.
On 6 November 2021, 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, he had just cause to terminate the contract on the basis of art.
14bis of the FIFA Regulations on the Status and Transfer of Players (RSTP). He seeks payment
of SEK 143,000 “plus all applicable interest” broken down as follows:
Outstanding remuneration
• May 2021 salary of 14,300 SEK;
• June 2021 salary of 14,300 SEK;
• July 2021 salary of 14,300 SEK;
• August 2021 salary of 14,300 SEK; and
• September 2021 salary of 14,300 SEK.
Residual value of the contract:
• October 2021 salary of 14,300 SEK; and
• November 2021 salary of 14,300 SEK;
Additional compensation:
42,900 SEK (14,300 SEK per month x 3 months)
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b. Position of the Respondent
8.
The club firstly objected to the jurisdiction of FIFA to hear the claim and argued that the
National Dispute Resolution Chamber of Sweden (hereinafter: Swedish NDRC) is competent
to hear it on the basis of clause 17 of the contract and the “standard player contract” of the
Swedish Football Association. The club however filed no copies of the Swedish NDRC
regulations or a copy of the alleged standard contract.
9.
The club additionally argued that “On September 26, the Player returned his gym badge,
cleared out his place in the locker room and confirmed to Mr. Bismarck Amponsah equipment
manager, that the Player was leaving. Club Director Mr Tore Eliasson was present at the
occasion”. No evidence to this end was filed by the club
10. As to the termination, the club argued as follows:
“First of all, the Respondent disputes the statements of the Claimant regarding termination
was unilateral breaking from a legal point of view. Swedish law. (…)
According to settled case law by the Court of Arbitration for Sport, a “valid reason” or
“just cause” for termination of an employment contract exists when the relevant impeding
circumstances are of such nature, or has reached such a level of seriousness, that the
essential conditions under which the contract was concluded are no longer present and
the injured party cannot in good faith be expected to continue the employment
relationship. The aforesaid is to be established on a case-‐by-‐case basis. CAS
2018/A/6029.
In the present case, the essential conditions under which the Player agreement was
concluded are no longer present. The extreme circumstances described in the Force
Majeure section above therefore amounts to a just cause for termination under FIFA
regulation Article 14 point 1”.
11. The club made the following request for relief:
“In view of the aforesaid, AFC respectfully requests that FIFA PSD and DRC:
1. a) rejects the claims of the Player based on lack of jurisdiction, or
2. b) dismiss the claims based on the abovementioned facts, evidence and circumstances,
and
3. c) rule that the Player shall bear the arbitration costs for the proceedings, and
4. d) that the Player shall bear AFC’s legal fees and other expenses incurred in connection
with the proceedings before FIFA PSD and DRC”.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 6 November 2021
and submitted for decision on 9 February 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.
13. Subsequently, the Single Judge 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 (August 2021 edition ), the Dispute Resolution Chamber is
in principle competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Japanese player and a Swedish
club.
14. The Single Judge further that the Respondent contested the competence of FIFA’s deciding
bodies in favour of the Swedish NDRC, alleging that the latter is competent to deal with any
dispute deriving from the relevant employment contract, in accordance with its clause 17.
15. Taking into account all the above, the Single Judge firstly emphasised that in his statement
of claim, the player filed an unsigned copy of the contract executed between the parties and
argued that he was never provided with a signed copy of the contract. He thus asked FIFA to
retrieve said contract from TMS.
16. While analysing the information available in TMS, the Single Judge highlighted that therein
only a one sheet page document was found in the area designated as the player’s contract
in the relevant instruction. Nonetheless, the Single Judge observed that club does not dispute
the contents of the draft presented by the player.
17. At this point, the Single Judge emphasized that no jurisdiction clause is found in the
documentation available in TMS and in the file, and that the club did not file a copy of the
“standard player agreement” in spite of having referred to it in its statement of defence.
18. The Single 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, she stressed the wording of art. 13 par.
4 of the Procedural Rules, pursuant to which she may consider evidence not filed by the
parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
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19. The Single Judge thus was satisfied that she would adjudicate on the issue of competence on
the basis of the documentation made available by the player and in TMS, upon which no
jurisdiction clause is found in the relevant employment contract executed between the parties.
20. The Single Judge thus underlined that in accordance with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, FIFA is, in principle, competent to hear an employmentrelated dispute between a club and a player of an international dimension. Nevertheless, the
parties may explicitly opt in writing for such dispute to be decided by an independent
arbitration tribunal 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. The independent national arbitration tribunal must guarantee fair proceedings
and respect the principle of equal representation of players and clubs. Equally, the Single
Judge referred to the principles contained in the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations, which came into force on 1 January 2008.
21. In this context, the Single Judge pointed out that she should first analyse whether the
employment contract at the basis of the present dispute contained a clear and exclusive
jurisdiction clause in favour of the Swedish NDRC. As highlighted before, no such clause exists
in the matter at hand.
22. As a consequence, the Single Judge was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need to
enter the analysis of any further requirement, she established that the Respondent’s objection
to 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,
to consider the present matter as to the substance.
23. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition), and
considering that the present claim was lodged on 6 November 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Merits of the dispute
24. Her competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, she started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
she emphasised that in the following considerations she will refer only to the facts, arguments
and documentary evidence, which she considered pertinent for the assessment of the matter
at hand.
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i. Main legal discussion and considerations
25. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the justice of the early
termination of the contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the Respondent as per the contract, in accordance with art. 14bis of
the Regulations.
26. In this context, the Single Judge acknowledged that her task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
27. The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that they have put the debtor club in default in writing and granted a deadline of
at least 15 days for the debtor club to fully comply with its financial obligation(s).
28. The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to the months between May and September 2021. Furthermore, she noted
that the Claimant has provided written evidence of having put the Respondent in default on
17 September 2021, i.e. at least 15 days before unilaterally terminating the contract on 4
October 2021.
29. The Single Judge also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties. Nonetheless, no evidence has been filed by the club in this respect, nor in support
of its argumentation that the player left on 26 September 2021. Equally, no supporting
evidence (or substantive legal reasoning for that matter) was advanced by the club in relation
to the alleged issue of force majeure.
30. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations. The club accordingly must bear the
consequences that follow.
ii. Consequences
31. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
32. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are equivalent to 5 salaries under
the contract, amounting to SEK 14,300 each.
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33. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. SEK 71,500
(i.e. 5 times SEK 14,300).
34. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from their respective due dates until
the date of effective payment.
35. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, she 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.
36. In application of the relevant provision, the Single Judge held that she first of all had to clarify
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.
37. In this regard, the Single Judge established that no such compensation clause was included
in the employment contract at the basis of the matter at stake. As a consequence, the Single
Judge determined that the amount of compensation payable by the Claimant to the
Respondent had to be assessed in application of the other parameters set out in art. 17 par.
1 of the Regulations. The Single Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
38. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract until
its term. Consequently, the Single Judge concluded that the amount of SEK 28,600 (i.e. the
salaries of October and November 2021 à SEK 14,300 each) serves as the basis for the
determination of the amount of compensation for breach of contract.
39. In continuation, the Single Judge verified 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
Football Tribuanl as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under
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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.
40. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
41. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
42. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of SEK 28,600, i.e. 2 times SEK 14,300, as the residual value of the
contract. The Single Judge clarified in this respect that since no mitigation existed in the
present matter, no additional compensation under art. 17 of the Regulations could be granted
to the Claimant. As such, that request of the player was rejected.
43. Lastly, taking into consideration the player’s request as well as the constant practice of the
Football Tribunal in this regard, the Single Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of 6 November 2021 (i.e. the date of claim) until the
date of effective payment.
iii. Compliance with monetary decisions
44. Finally, taking into account the applicable Regulations, the Single Judge 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.
45. In this regard, the Single Judge 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.
46. Therefore, bearing in mind the above, the Single Judge 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.
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47. 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.
48. The Single Judge 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.
c. Costs
49. The Single Judge 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, she decided that no procedural costs were to be
imposed on the parties.
50. Likewise and for the sake of completeness, she recalled the contents of art. 25 par. 8 of the
Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
51. Lastly, the Single Judge concluded the 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, Yuki Aizu, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, FC Linkoping City, has to pay to the Claimant, the following amount(s):
a. SEK 14,300 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 until
the date of effective payment;
b. SEK 14,300 as outstanding remuneration plus 5% interest p.a. as from 1 July 2021 until the
date of effective payment;
c. SEK 14,300 as outstanding remuneration plus 5% interest p.a. as from 1 August 2021 until
the date of effective payment;
d. SEK 14,300 as outstanding remuneration plus 5% interest p.a. as from 1 September 2021
until the date of effective payment;
e. SEK 14,300 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021 until
the date of effective payment;
f. EUR 28,600 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 6 November 2021 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
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1.
2.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
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.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
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).
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