Labour Disputes
Texto da decisão
REF FPSD-3584
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Yoann
Arquin
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Stefano Sartori (Italy) member
CLAIMANT:
Yoann Arquin, France
Represented by Mr Ted Arquin
RESPONDENT:
Wuhan FC, China PR
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I.
Facts of the case
1.
On 11 April 2021, the player and the club concluded an employment contract, valid as from
the date of signature until 31 December 2021.
2.
As per clause 3.1.1 of the contract, the player is entitled to receive the following
remuneration: “EUR 225,000 […] from 11/4/2021 […] until 31st December 2021 before tax,
which shall amount to EUR 150,000 […] after tax for reference”.
3.
The contract further stipulates, in clause 3.2, that: “The annual salaries shall be paid to [the
player] in equal monthly installments. [The club] shall pay the salary for the last month on the
15th day of every month. […] The salary will be paid in 12 times”.
4.
The contract also establishes, in clause 3.5, that: “[…] Before [the club] pays [the player] each
instalment of the amounts agreed under this contract, [the club] shall be responsible for the
withholding and payment of the income tax due from [the player] in Mainland China from
the before-tax amount payable to [the player] in accordance with the relevant laws and
regulations of [China]. Any taxes, expenses, levies, etc. that might be originated in any country
or region outside of Mainland China shall be exclusively declared, paid and borne by [the
player]”.
5.
Clause 9.6 of the contract establishes the following: “[The player] has the right to terminate
this contract by notifying [the club] in writing if any of the following events occurs: 6.1. [The
club] fails to pay salary to [the player] for more than two (2) months and fails to remedy such
default within 15 (fifteen) days upon receipt of [the player]’s written notification”.
6.
On 16 August 2021, in view of the fact that he had never been paid since the beginning of
the contract, the player put the club in default, granting it 10 days to remedy the default, in
accordance with art. 12bis of the RSTP.
7.
On 17 August 2021, the player put again the club in default of payment of his salaries, this
time mentioning art. 14bis of the RSTP and granting the club 15 days to make the due
payments.
8.
On 1 September 2021, with no answer or payment from the club, the player terminated the
contract with immediate effect in accordance with art. 14bis of the RSTP.
9.
On 7 September 2021, the player lodged the present claim at FIFA against the club, seeking
the payment of outstanding salaries and compensation for breach of contract, as detailed
below.
10. The player informed FIFA that he has remained unemployed since the termination of the
contract.
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II. Proceedings before FIFA
11. On 7 September 2020, 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
12. In his claim, the player alleges that he never received any amounts from the club, which never
provided any clear explanation as to this fault. In particular, the player indicates to have
exchanged several messages with the club’s translator in this regard, but “without significant
progress”. The player claims that, 3 months after his arrival, he received a text message from
the club’s translator asking him for his bank details for salary payments, but no follow-up was
made afterwards.
13. At the beginning of July 2021, the player, who had not yet received any salaries from the
club, states to have been contacted by the latter regarding a proposal to be loaned to club
Heilongjiang Ice City Football Club, a second division Chinese professional football club, until
the end of 2021. The player rejected the proposal and stated that, in spite of not having been
paid at all up to that moment, he preferred to stay with his first division club and establish
himself as a player in China.
14. According to the player, the club did not accept his refusal and informed him that “they had
already arranged everything with this second division Chinese club and that he had to accept
the loan offer and sign the documents because he was expected to play for such club” (note:
on file, unsigned transfer agreement dated 12 July 2021 for the player to be loaned from 12
July 2021 to 31 December 2021 and relevant employment contract with new club, also
unsigned, valid for the same period of the loan, in which a salary of “EUR 0.00 (in words:
ZERO Euros)” was established. Clause 3 of the loan agreement particularly stipulates that
“Party A and the player confirm that the player has received all the salaries under the
professional employment agreement between Party A and the player before the signature
date of this contract and has no dispute with Party A regarding economic interests or the
professional employment agreement, and Party B shall bear no responsibilities for the
foregoing dispute (if any).”).
15. Even though the player managed to stay with the club, he claims that after having refused
the loan he was first sent to the reserve team and later on to individual training, allegedly
without any explanation.
16. As the player understood that his situation at the club would not improve, he suggested via
his legal counsel the amicable termination of the contract, either against the payment of EUR
150,000 in 2 instalments or the payment of EUR 135,000 in one instalment. As no reply was
received, the player sent a second email to the club with the Chinese FA in copy, with the
same content of that of the 12 August 2021, however to no avail.
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17. In view of the club’s inaction, the player sent it a default notice on 16 August 2021, requesting
the payment of his outstanding salaries since the beginning of the contract (no amount
specified) and granting the club 10 days to remedy the default, in line with art.12bis of the
RSTP. Another default letter was sent on 17 August 2021, granting the club 15 days to pay
the outstanding salaries (no amount specified), this time mentioning art. 14bis of the RSTP.
18. The player claims that his lawyer and the club finally managed to find an amicable solution
to his case on 20 August 2021, however the player’s counsel has not been provided with any
written document in this sense (note: messages exchanged between the player’s lawyer and
the club’s translator between 18 and 21 August 2021 on file; a message of the club’s
translator of 20 August 2021 states that “The club agreed 120,000. Only 120,000 without
ticket”).
19. On 1 September 2021, having received no answer or payment from the club, the player
terminated the contract based on art. 14bis of the RSTP.
20. The player considers that the club committed a severe breach of contract, by not paying him
his remuneration and not allowing him to properly perform the contract, as he was never
fielded for any competition through the season. He claims to have borne all expenses of his
stay in China and in spite of his several attempts to either maintain the contract or terminate
it in an amicable manner, as the club had clearly lost interest in him, the club was never
responsive and he was left with no other option than to terminate the contract unilaterally.
21. Thus, the player requests from the club the payment of the total amount of EUR 500,000,
broken down as follows:
• “125,000 EUR as outstanding remuneration, corresponding to the gross salaries due from
the effective date of the employment contract until its termination with just cause for
outstanding salaries ([225,000 EUR/9 months] x 5 months), plus interest of 5% p.a. as of 11
April 2021 until the date of effective payment;
• 100,000 EUR as loss of remuneration, corresponding to the remaining salaries due for the
remaining duration of the employment contract ([225,000 EUR/9 months] x 4 months), plus
interest of 5% p.a. as of 1 September 2021 until the date of effective payment;
• 225,000 EUR as compensation for non-performance of contractual obligations under the
employment contract, corresponding to the residual value of such contract, plus interest of
5% p.a. as of 11 April 2021 until the date of effective payment;
• 50,000 EUR for damages for moral prejudice due to the gross, humiliating and vexatious
conditions under which the non-performance of contractual obligations of the club under the
employment contract occurred, plus interest of 5% p.a. as of 11 April 2021 until the date of
effective payment”.
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b. Position of the Respondent
22. In its reply, the club first indicates that the amount owed to the player as outstanding salaries
shall not be calculated based on the gross salary, but on the net salary, as specified in the
contract. In this respect, the player would be entitled to the total amount of EUR 83,335 as
outstanding remuneration (i.e. EUR 150,000 / 9 months * 5 months).
23. The same argument is used for the calculation of the compensation due to the player. The
club states that the remaining value of the contract is EUR 66,668. Furthermore, in
determining the compensation, FIFA should take into account the national law. In this respect,
the club mentioned art. 177 of the “Chinese Contract Law”, which establishes that “a party
who is unable to perform a contract due to force majeure exempted from liability in part or
in whole in light of the impact of the event of force majeure”. The club mentioned that the
Covid pandemic still has a strong impact in the Chinese Super League and in the club’s
finances. Thus, due to the situation of force majeure, the club should be exempted from the
payment of any compensation to the player or the amount due should be reduced.
24. The club also states that the player “didn’t always perform the contract and fulfil his
obligations in good faith. On the contrary, the Player behaved badly and shower the passive
attitude at training after being removed from the first team for sporting reason” (note: no
evidence provided). Considering the alleged bad performance of the player and the restricted
number of foreign players allowed, the club decided to replace the player and loan him to
another club, which he refused.
25. As the club believed that the parties had reached an amicable solution on 20 August 2021,
having agreed to pay the player the amount of EUR 120,000, the player allegedly left the club
without authorisation on 27 August 2021, even before the contract had been terminated
and brought his case to FIFA.
26. Finally, the club rejects the player’s request for moral damages. In this respect, it claims that
the player was never removed from the reserve team and sent to play alone. He in fact showed
a negative attitude towards the club and left the reserve team on 27 August 2021 without
authorisation before the termination of the contract.
27. The club made the following requests for relief:
• “to deduct the amount of 1st request to 83,335 EUR;
• To adjust 2nd and 3rd request under the residual value of the Contract which is 66,668
EUR;
• To dismiss the 4th request”.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 7 September 2021 and submitted for
decision on 16 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.
29. 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 (August 2021 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 French player and a
Chinese club.
30. 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 (August 2021 edition) and
considering that the present claim was lodged on 7 September 2021, the August 2021 edition
i edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
31. 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.
32. 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).
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c. Merits of the dispute
33. 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.
34. 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
35. The foregoing having been established, the Chamber moved to the substance of the matter,
and firstly noted that the dispute at stake concerns an alleged breach of contract on the part
of the club. In this context, the Chamber wished to point out the following aspects:
-
The contract was unilaterally terminated by the player on 1 September 2021;
-
From the documentation and arguments on file, it is undisputed that the player has not
been paid since the beginning of the contract on 11 April 2021.
-
The club also confirms that the player was sent to the reserve team and replaced by another
foreign player, which then exceeded the number of foreign players allowed in the club.
-
No evidence of the player’s alleged bad performance was provided by the club.
-
In spite of the default notices of 16 and 17 August 2021 and the previous “informal”
attempts of the player to solve the matter of the non-payment of his salaries, the only
solutions proposed by the club were his loan to another Chinese club as from 12 July 2021
and an alleged amicable agreement (by text message with the club’s translator) to
terminate the contract and pay the player the amount of EUR 120,000;
-
In spite of the foregoing, no amicable settlement was drafted and no payment was made;
-
The player claims to have terminated the contract with just cause in line with art. 14bis of
the RSTP.
36. In this context, the Chamber concluded that the main discussion of the dispute at stake is
whether the player terminated the contract with or without just cause on 1 September 2021.
In analysing the aforementioned point, the Chamber referred to the default notice sent by
the player to the club on 17 August 2021, which referred to art. 14bis of the RSTP. In this
respect, the Chamber acknowledged that, once the default notice was sent to the
Respondent on the said date, the Claimant terminated the contract on 1 September 2021,
i.e. on the 15th day of the deadline within which the Respondent still could remedy its breach.
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37. Thus, the Chamber concluded that the player did not terminate the contract with just cause
in accordance with art. 14bis RSTP.
38. Notwithstanding the above, the Chamber especially considered the following undisputed
facts: the player was never paid since the beginning of the contract, in spite of his informal
and formal default notices to the club; the non-payment of his salaries is uncontested by the
club; the club lost interest in the player and admittedly replaced him by another foreign player,
exceeding the maximum number allowed, and thus offered the player a transfer to another
club; the transfer agreement to the next club contains a clause which cunningly states that
by signing the agreement the player agrees that he has no financial claims against the club;
the club admits having sent the player to the reserve team, for alleged insufficient
performance, provides however no evidence of such.
39. In view of all of the above-mentioned circumstances, the Chamber unanimously concluded
that the player terminated the contract with just cause ex. art. 14 RSTP, also considering that
the club’s argument that the player breached the contract by leaving the club on 27 August
2021 cannot be upheld since a) there is no evidence of such, b) the club had already agreed
(though informally) to terminate the contract and pay the player the amount of EUR 120,000,
c) the club cannot demand from the player to perform the contract when it never paid the
player one single salary since the beginning of the contract.
ii. Consequences
40. 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.
41. The Chamber wished to make a preliminary remark as to the salary to which the Claimant is
entitled, in view of the positions of the parties in this regard. In this respect, the DRC
underscored that the contract is clear in the sense that the net remuneration payable by the
club to the player is EUR 150,000 and not EUR 225,000 and that the club shall withhold and
pay any amounts related to taxes in China, i.e. the player is entitled to monthly salaries of
EUR 16,666 (150,000 / 9 = 16,666.67).
42. Thus, the DRC determined that the player was contractually entitled to EUR 16,666.67 as
monthly salary, amount that shall be used as basis for the calculation of the outstanding
remuneration and compensation for breach of contract due to the player.
43. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, is equivalent to EUR 83,334,
corresponding to the salaries due to the player as from April 2021 until August 2021 in the
amount of EUR 16,666.67 each.
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44. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber 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. EUR 83,334.
45. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the date following their respective due dates,
i.e. as from the 16th day of the month following their respective accruals, until the date of
effective payment.
46. Having stated the above, the Chamber turned to 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.
47. 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, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
48. 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.
49. 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 EUR 66,666 (the salaries due to the player between September and
December 2021, i.e. 4 salaries of EUR 16,666.67 each) serves as the basis for the
determination of the amount of compensation for breach of contract.
50. 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
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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.
51. In the present case, the Chamber verified that the player remained unemployed following the
termination of the contract and, consequently, was not able to mitigate his damages.
52. Thus, the Chamber concluded that the residual value of the contract, i.e. EUR 66,666, shall
be granted to the player as compensation for breach of contract, amount that cannot be
subject of any mitigation considering that the player remained unemployed and could not
mitigate his damages. In addition, the Chamber stressed that, since the amount of
compensation for breach of contract cannot be mitigated, no additional compensation in the
sense of art. 17 para. 1 lit. ii) of the Regulations can be granted.
53. 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 EUR 66,666
to the player, i.e. the residual value of the contract corresponding to the salaries due to the
player between September and December 2021 (4*16,666.67 = 66,666), which was
considered by the Chamber as a reasonable and justified amount of compensation for breach
of contract in the present matter.
54. 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 the date on which the claim was lodged, i.e. 7 September 2021,
until the date of effective payment.
iii. Compliance with monetary decisions
55. 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.
56. 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.
57. 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
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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.
58. 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.
59. 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
60. 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.
61. 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.
62. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yoann Arquin, is partially accepted.
2.
The Respondent, Wuhan FC, has to pay to the Claimant, the following amount(s):
- EUR 83,334 as outstanding remuneration plus 5% interest p.a., calculated as follows:
- on the amount of EUR 16,666, as from 16 May 2021 until the date of effective payment;
- on the amount of EUR 16,666, as from 16 June 2021 until the date of effective payment;
- on the amount of EUR 16,666, as from 16 July 2021 until the date of effective payment;
- on the amount of EUR 16,666, as from 16 August 2021 until the date of effective
payment;
- on the amount of EUR 16,666, as from 16 September 2021 until the date of effective
payment.
- EUR 66,666 as compensation for breach of contract, plus 5% interest p.a. as from 7
September 2021 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.
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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
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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