Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 31 October 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (the Netherlands ), member
Daan de Jong (the Netherlands ), member
on the claim presented by the club,
Chiangrai United FC, Thailand
represented by Mr. Chittawan Chinanuvat
as Claimant 1 / Respondent 3
against the player,
Mark Robert Bridge, Australia
represented by Ms Angela Collins
as Respondent 1 / Claimant 2
and the club,
Wes tern S y dney Wanderers FC, Australia
as Respondent 2
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
In June 2016, the Australian club Western Sydney Wanderers FC (hereinafter:
Western Sydney or Respondent 2) and the Thai club, Club Chiangrai United FC
(hereinafter: the club or Chiangrai or Claimant 1 / Respondent 3) agreed on the
definitive transfer of the Australian player, Mark Robert Bridge (hereinafter: the
player or the Respondent 1 / Claimant 2) from the former to the latter and that
Chiangrai would pay Western Sydney the amount of AUD 100,000 as transfer
compensation.
2.
After concluding a first contract valid as from 15 June 2016 until 15 December
2017, on 1 January 2017, the player and Chiangrai concluded a second
employment contract (hereinafter: the contract), valid as from the date of
signature until 31 December 2019.
3.
According to the contract, the player was entitled inter alia to the total amount
of USD 900,000 payable in monthly installments of USD 25,000 each, due on the
10th day of each month.
4.
Further to the contract, the player was entitled to receive “Provision of
accommodation of THB 5,000 at the Club’s sole discretion during your
participation for the club”, as well as 3 flight tickets “from Australia to
Thailand” and 3 flight tickets “from Thailand to Australia”.
5.
The contract contains 2 annexes, one entitled “Standard Terms of
Participation” according to which “The Club shall always have the right to
transfer, increase or otherwise change the Participant's position and duties in
the Club's sole and absolute discretion” and the other entitled “Rules and
Regulations of Chiang Rai United Football Club”. Both annexes are to be
considered as an integral part of the contract.
6.
On 5 January 2017, the player suffered a knee injury during the preseason
training, injury which according to the first test results, would require the
player to undergo surgery on his left knee.
7.
On 13 January 2017, the player’s legal representative sent an email to the club
which reads inter alia as follows:
“without prejudice
…
The Player has advised me that he met with the Club yesterday, and was told
that that the Club intends to de-register him from the 2017 Thai League
because of a knee injury he sustained while at team training in early January.
The player will require surgery on his knee; however, it is expected that he
Chiangrai United FC, Thailand / Player Mark Robert Bridge, Australia & Western Sydney Wanderers FC, Australia
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will be fit to resume his contractual duties before the June 2017 transfer
window.
Accordingly, the effect of the Club's de-registration of the Player would mean
that the Player would not be eligible for selection in the 2017 Thai League
once he recovers from his knee injury.
Further, if the Club failed to re-register the Player in the June 2017 transfer
window, the Club will be committing a very serious unilateral breach of the
Contract, which would allow the Player to terminate the Contract for just
cause and seek the full remaining value of the Contract, as well as sporting
sanctions against the Club…
As discussed with you, the Player has great respect for the Club and does not
want to see a situation unfold as described above. His preference is to come
to an immediate amicable mutual termination of the Contract.
Accordingly, the Player is willing to accept, in full and final settlement, the
amount of USD 450,000 (net), which is equivalent to 18 months' salary. The
Player's position is that this is a fair and reasonable amount, considering that
the Contract term is 36 months and the Club would make other savings over
that period (for example, rental and bonus payments).
I am confident that an amicable resolution can be reached in this matter and
I look forward to your prompt response.
…”
8.
On 17 January 2017, the player’s legal representative sent an email to the club
in which it was stated:
“As previously indicated to you, the Player will require surgery on his knee as
a result of an injury sustained during training; however, it is expected that he
will be fit to resume his contractual duties before the June 2017.
In view of such matters, I seek urgent written confirmation of the following:
a.
his current registration status and eligibility to play in the Thai Premier
League;
b.
if the Player has been deregistered and therefore ineligible to play in
the Thai Premier league, the date upon which the Player was deregistered;
and
c.
if the Player has been deregistered, confirmation that the Club will
immediately re- register the Player in the Thai Premier League at the
commencement of the transfer window on 5 June 2017.”.
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9.
By email of 19 January 2017, the club replied to the player stating that “ the
Club, on this situation, have a sole and absolute discretion to make any
decisions with the Player’s registration Status”, and that the Player “should
stop to request or query his registration Status anymore.”.
10. Subsequently, per the player’s request, the club and the player agreed to
allow the player to have the surgery in Australia.
11. The player returned to Australia on 21 January 2017.
12. On 24 January 2017, the player’s legal representative sent an email to the club
informing it that after a subsequent medical evaluation in Australia it was
determined that the player did not require surgery and instead of having the
knee surgery, the player would undergo conservative treatment in Australia.
In this letter, the player informed the club that he would be fit to resume his
duties in or around mid-April 2017 and requested once again the same
confirmations as per the email of 17 January 2017.
13. On 26 January 2017, the club replied to the player by email stating that:
“…
On January 24, 2017, the club was informed by you that the player had
returned to Australia to meet Dr. Bassam Moses but Dr. Moses had a new
opinion (the detail as mentioned in email below) and suggested that the
player would not require the surgery anymore which made the club question
for such opinion. As the player made a decision not to have the surgery.
However, the player's decision is against the club's decision and not comply
to the Club's doctor's opinion. For such reason, the club reserves the rights to
exercise the options stated In the contract.
The club still respects the contract and pays the player with full benefit.
However, if the player will undergo the conservative treatment with Dr.
Bassam for 12 weeks as you mentioned, the club will not register his name to
play in the Thai Premier League until he is in a good condition and is proved
by the club that he is ready to play at the top level.
The club strongly advises you that the club has the rights to make a decision
on this matter and the club does not breach any clauses of contract. If there
are any actions against the club, the club reserves the rights to exercise the
options stated in the contract as well.”.
14. The player returned to Thailand on 11 April 2017 and joined the club’s
training sessions with the senior team.
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15. Several correspondence were exchanged between the player and the club
during April and July 2017 such as:
Email from the player’s legal representative to the club dated 12 April
2017 confirming that the player was fit to resume duties and
requesting confirmation that the player would be re-registered by the
club;
Email from the player’s legal representative to the club dated 21 April
2017 stating that the player had been made to train alone and
requesting confirmation that the player would be re-registered in
the Thai Premier League (hereinafter: the League);
Email from the club to the player’s legal representative dated 21 April
2017 confirming that the Player could only be registered in the
Transfer Window and that “the decision is the right of the club only”;
Letter from the player’s legal representative to the club dated 28 April
2017 disputing that the player's re-registration was a unilateral
decision to be made by the Club and requesting confirmation that
the Player would be re-registered in the League during the Transfer
Window;
Letter from the player’s legal representative to the club dated 16 May
2017 confirming that the player would not consent to a transfer
of his registration to another club and again requesting
confirmation that he would be re-registered in the League during
the Transfer Window;
Email from the club to the player’s legal representative dated 16 May
2017 stating that “Please be informed that as I know the Club will
discuss with him first. The club still respect player contract and make
a payment in full every months. Under my observation, the player
still train with the first team under coach programs and coach's
decision. Please clarify player's intention that what is the real
intention that he want. Does he want to terminate his contract with
the club?”.
Letter from the player’s legal representative to the club dated 7 June
2017 confirming that the player would not consent to a loan to
another club and requesting that he be immediately re-registered
in the League;
Warning Letter from the Club to the player dated 9 June 2017,
whereby the Club claims that although the player was made aware of
the Head Coach’s intention to improve his physical condition and
performance, the player did not attend training sessions;
Warning letter from the Club to the player dated 26 June 2017,
whereby the Club claims that the player failed to abide by the Club’s
Regulation according to which “(e)very participant has to present their
working hours by finger scan in and out daily basis”.
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Letter from the player’s legal representative to the club of 10 June 2017
demanding retraction of the warning Letter and noting that the
Player was being forced to train alone and seeking immediate
reinstatement to first team training;
Letter from the player’s legal representative to the club dated 19 June
2017 requesting that the Player be Immediately reinstated into
first team training;
Warning Letter from the club to the Player dated 26 June 2017;
Email from the player to the club dated 26 June 2017 in response
to the Warning Letter;
Letter from the player’s legal representative to the club dated 3 July
2017 confirming that the club must immediately re-register the
player in the League in consideration of it being the last day of
the Transfer Window; and
WhatsApp conversations between the player and the club of 3 July and
4 July 2017 in which the player requested information about his
registration in the League and where he is informed that the he is
registered for the "Toyota League Cup 2017” (hereinafter: the Cup).
16. On 4 July 2017, the player terminated the contract in writing effective
immediately, due to the club's failure to re-register him as a player in
the League during the transfer window. The player confirmed his position
in respect of the termination of the Contract, namely that:
a. he had a fundamental right as a contracted professional football player
to be registered and eligible to play for the club in the League;
b. his rights in this respect are consistent with the well -established
jurisprudence of the DRC and the Court of Arbitration for Sport
(CAS); and
c. the club's failure to re-register him in the League by the close of
the Transfer Window constituted a unilateral breach of the
Contract.
17. On 5 July 2017, the club replied to the player’s termination contesting the
grounds for it (Note: letter on file and enclosed for ease of reference) and
stated inter alia that:
[…]
“the Club has already informed to the Player that the Player could play for
the Club in the League Cup, one of major professional football tournaments
in Thailand, and the Club has already registered the Player to be eligible
to play in the League Cup under the Club's Asian foreign player quota.
In this regard, the Club insists that the Club does not breach the Agreement.
The Club has fully paid to the Player all payments and benefits in
accordance with the Agreement, including the period that the Player
badly suffered from knee injury during January-June 2017.
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[…]
the Player is currently not entitled to terminate the Agreement. Exercising
such termination by the player shall be treated as a breach of the terms of
the Agreement without just cause during the protected period.
[…]”.
18. On 11 July 2017, the player and Western Sydney entered into an employment
contract valid as from 18 July 2017 until 31 May 2019 by means of which he
was entitled to receive AUD 221,153.85 for the first year and AUD 250,000 for
the second year.
19. The player was provisionally registered with Western Sydney on 28 August
2017 following the decision of the Single Judge of the Players' Status Committee
on 25 August 2017.
20. On 17 August 2017, the club lodged a claim before FIFA against the player and
his new club, Western Sydney, for compensation for breach of contract, as the
club held that the player prematurely unilaterally terminated the contract
without just cause. The club requested to receive compensation as follows:
USD 750,000 as remaining value of the contract calculated as 30 months
as from July 2017 until December 2019;
THB 150,000 which according to the club corresponds to USD 4,285.71 as
accommodation for 30 months as from July 2017 until December 2019;
Interest of 5% as from 4 July 2017;
Sporting Sanctions to be imposed on the player and Western Sydney.
21. In regards to the email of 13 January 2017, the club deemed that it can be
described as “the initiation of the need to terminate the employment
contract”, “the way the Player proposed to receive the money in exchange
of a termination of the contract prior to the expected knees surgery and
only within the first 13 days from the beginning of the second contract, is
considered that the Player had an intention not to fulfill his contractual
obligations”.
22. In this regard, the club held that the Club did not want to terminate the
employment contract believing that the player’s injury “would be healed and
soon he would be able to perform his contractual obligations…”.
23. In regards to the player’s decision to undergo conservative treatment instead of
surgery, the club held that this was done “explicitly against the Club's
instruction and permission to allow the Player to go back to his home
country for having his injury healed by the way as agreed”.
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24. According to the club, the player returned to Thailand with the injury “not being
fully healed” and therefore, the club “arranged special training programs for
the Player which were suitable for his physical condition and would allow
him to be prepared for the official matches”.
25. In this regard, the club referred to CAS Award CAS 2011/A/2428 and held that
“due to the Players physical condition, it was necessary for the Player to
train alone in the special programs along with the normal training sessions
with his teammates.”.
26. According to the club, this is to be evaluated on the basis whether the
employment contract contains a clause stating that the player may only train
with the first team, which according to the club, the contract at the basis of the
dispute does not contain.
27. Along this line, the club held that the coaching staff often reported that the
Player “always showed lack of motivation and did not concentrate on the
training” and that according to the head coach’s opinion, “indeed, the Player
was not ready both physically and mentally to play for the Club.”. The club
enclosed the head coach’s report dated 8 August 2017 in support of its
allegations.
28. According to the club, since “the Player failed to attend the training sessions
and failed to comply with the regulation”, the club issued two warning
letters to the player dated 9 June 2017 and dated 26 June 2017.
29. The club explained that on 3 July 2017 the club registered the player to play
in the Cup “despite being not ready both physically and mentally to play
for the Club, the Club was willing to improve the Player's mentality and
prepare his physical conditions to be ready for all official matches”. The club
provided a confirmation from the league regarding the player’s registration in
the league cup.
30. According to the club, the player was fully aware of his registration with the club
for the Cup.
31. The club maintained that, under the employment contract, there is no
clause which states that the player must be registered to play merely in
the League and held that the Cup, has to considered “as an official match”
according to FIFA’s RSTP.
32. Furthermore, the club held that the player’s non registration in the League is
valid and referred to the clause 1 of the “ Standard Terms of Participation”
which stipulates that “The Club shall always have the right to transfer,
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increase or otherwise change the Participant's position and duties in the
Club's sole and absolute discretion”.
33. The club further held that “even if the Player always acted in an inappropriate
and unprofessional manner”, the club paid all his remuneration in accordance
with the contract.
34. The club deemed it has not violated any fundamental rights of the player
since his remuneration was always paid, he was allowed to train with his
teammates and he was registered for the Cup.
35. Finally, the club deemed that Western Sydney induced the player into
breaching the contract
36. On 13 October 2017, the player lodged a claim before FIFA against Chiangrai for
compensation for breach of contract. The player requested to receive
compensation as follows:
USD 506,376 as compensation for breach of contract;
THB 59,405 as reimbursement for the player’s return flight ticket to
Australia (note: flight ticket and payment receipt provided for a business
flight ticket on the route Bangkok – Sydney on 5 July 2017);
Interest of 5% as from 4 July 2017 ;
Sporting Sanctions to be imposed on club.
37. In his claim the player argued that on 4 July 2017 he terminated the contract for
just cause on account of the club‘s unilateral breach of the Contract as follows:
a. The player was deregistered from the League after suffering an
injury in January 2017;
b. The club failed to re-register him in the League during the relevant
transfer window period in Thailand from 5 June 2017 to 3 July 2017
(hereinafter: the Thai Summer transfer window);
c. Substantial notice was given to the club following the player’s injury and
deregistration that its failure to reregister the Player during the
Thai Summer transfer window would constitute a unilateral breach of
the contract;
d. The club‚ through its actions in the period from player’s injury until
the termination, showed no intent to retain the services of the player
to re-register him for the League, insofar as:
i.
The Club entered into discussions with other clubs to loan the
player, without the Player’s permission; and
ii.
When the Thai Summer Transfer Window opened, the club did
not attend to the player’s registration, but rather imposed a
training regime upon the player for the sole purpose of
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excluding and segregating him from the senior team.
According to the player, the club‘s intentions in this respect were
to force the Player to;
a) either terminate his contract or enter into a mutual
termination for a significantly reduced amount of his
residual contractual value; or
b) accept a Ioan deal to another club; and
e. at no stage following the termination of the contract did the club
request that the player return to the club.
38. According to the player, on numerous occasions following his injury and
subsequent return to the club, he requested confirmation that he would be
re-registered in the League particularly during the period from 28 April 2017
until 3 July 2017.
39. The player argued that if he had not terminated the Contract , but rather
remained at the club, he would have suffered irreparable harm as:
1) he would have been prevented from continuing his trade as a
professional footballer by training with fellow professionals and
competing in official matches; and
2) as a consequence, his personality rights would have diminished.
40. In respect to the calculation of compensation the player explained that to the
residual value of the contract i.e. USD 750,000, the salary of July 2017 has to be
deducted since he received it and in regards to the mitigation, the player held
that under his contract with Western Sydney he is entitled to receive a gross total
salary of AUD 433,359.57 which is equivalent to AUD 283,221.88 net. The player
deemed that this amount is equivalent to USD 215,624, which is the amount he
considered that needs to be deducted.
41. In reply to the claim of the player, the club maintained the position of its own
claim. It further contested that the player was excluded from the senior team
arguing that there is no evidence of such allegation and held that it “added up
the special programs, for his physical, along with the normal training
sessions with his teammates”.
42. In reply to the claim of Chiangrai, the player maintained the position of his own
claim.
43. The player further held that the email of 13 January 2017, was without prejudice
and that the club is the one who is seeking to construe it negatively against him.
The player maintained that discussions pertaining to mutual terminations are
commonplace in football and are not indicative of any intention of the player to
not fulfil his contractual obligations.
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44. The player contested the “right” of the club “to transfer, increase or otherwise
change the Player's position and duties at its sole and absolute discretion”,
since in his opinion, the clause:
a) does not give the club the unilateral right to deregister the player and
ensure that he remained ineligible for selection and participation in
official matches for which he was contracted to play;
b) only operates to the extent that the club may determine whether to
select the player in a match, provided always that the player remains
eligible for selection;
c) does not override the well-established jurisprudence of the DRC and CAS
in respect of the player's fundamental rights as a professional football
player.
45.
The player maintained that from the commencement of the contract until
the termination on 4 July 2017, the club participated in 31 League matches;
none of which the player was eligible to be selected for due to his
deregistration and that as from 5 July 2017, the club was scheduled to
participate in a further 13 League matches, and only 3 Cup matches, which
meant that if he had not terminated the contract, he would officially have been
eligible to be selected in only 3 matches in a single season.
46.
The player rejected the assertion of the club that he missed training sessions or
that he failed to comply with the club’s regulations.
47.
According to the player, as from 8 June 2017, he was not permitted to attend
any training sessions with the team and every one of his training sessions
from that time until the termination were conducted in isolation, away
from the training pitch and in the Club’s gymnasium. The player held that
this can be proven since the club’s claim does not contains any further pictures
of him training with the team after 7 June 2017.
48.
Moreover, the player held that contrary to what the club argued, the fact that
he trained alone cannot be validly justified in the present matter since:
1) the Club never advised the player, or provided any evidence to him
(such as fitness testing results) to justify why it was necessary for him to
train alone;
2) the player was never provided with a specific training programme
designed for any specific purpose, but rather was conducted on an
ad-hoc basis; and
3) the player was not recovering from an injury at the time he was
segregated from the team.
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49.
In this context, the player argued that that the evidence provided displays
the Club's true intentions of implementing an unjustifiable training regime
for purposes purely related to his contractual status.
50.
In its replica, the club insisted on its position, emphasising that “Under the term
of an employment contract, there is no condition or clause that obligates
the club to register the Player merely in Thai League. Winning all
competitions, including Thai League, Toyota League Cup and Chang FA
Cup, is the Club's main goal in the 2017 season. The fact that the Player
was registered to one of these competitions shows that the Player was in the
Club's plan.”.
51.
The club further held that it “intended to include the Player in its 2018 and
2019 seasons' plan and it never wants to terminate the contract.”, as well as
that “The Player was given an opportunity to train alone and train with
the first team. The purpose was to prepare the Player both mentally and
physically for the 2018 and 2019 seasons and allow him to be fully recovered
from the injury.”.
52.
In his duplica, the player insisted on his argumentation and request for relief.
53.
On its part, Western Sydney rejected the club’s claim arguing that it clearly acted
correctly and in line with the FIFA regulations at all times and that it is evident
that, having not made any contact from 5th July 2017 until 16th August 2017,
Chiangrai did not have any genuine interest in retaining the services of the
player.
54.
On 11 March 2019, the player signed an employment contract with the
Australian club, Mounties Wanderers FC, valid as from 1 June 2019 until 17
October 2022, by means of which he is entitled to a remuneration of AUD
282,000.
55.
According to the player, he was entitled to a salary of AUD 42,000 net for the
period between 1 June and 31 December 2019, i.e. the latter date being the
expiry date of the contract with Chiangrai United FC. The player further claimed
that the said amount was equivalent to USD 29,129 as of 1 June 2019.
56.
In view of the above, the player amended his prayers for relief and requested
the total amount of USD 480,247 for compensation and THB 59,405
corresponding to the reimbursement of his flight to Australia.
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter at
stake. In this respect, it took note that the present matter was submitted to FIFA
on 17 August 2017. Consequently, the 2017 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 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 is competent to deal
with the matter at stake, which concerns an employment-related dispute with
an international dimension between an Australian player, a Thai club and an
Australian club.
3.
Furthermore, 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
(edition 2019), and considering that the present claim was lodged in front of
FIFA on 17 August 2017, the 2016 edition of said Regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the DRC entered into the substance of the matter. In doing so, it
started by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file. However, the Chamber emphasised that in
the following considerations it will refer only to the facts, arguments and
documentary evidence, which it considered pertinent for the assessment of the
matter at hand.
5.
In this respect, the members of the Chamber acknowledged that on 1 January
2017, the player and Chiangrai concluded the contract which was supposed to
be valid as from the date of signature until 31 December 2019, and according to
which the player was entitled inter alia to the amount of USD 900,000 payable
in monthly installments of USD 25,000 each, as well as to receive “Provision of
accommodation of THB 5,000 at the Club’s sole discretion during your
participation for the club”. Furthermore, the player was entitled to a 3 flight
tickets “from Australia to Thailand” and 3 flight tickets “from Thailand to
Australia”.
6.
Moreover, the DRC duly took note that the contract was early terminated by the
player on 4 July 2017.
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7.
In continuation, the Chamber noted that Chiangrai lodged a claim against the
player and his new club, Western Sydney maintaining that the player had
unilaterally terminated the contract without just cause, sustaining, in essence
that the player did not have a valid reason to terminate the contract before its
natural date of expiry.
8.
In particular, the DRC noted that Chiangrai held that the player could not have
any type of valid justification to proceed as he did, in view that 1) it always
fulfilled its financial obligations towards him, 2) there is no contractual
obligation to register Player in the league and 3) he was registered to play in
Thai Cup matches. Along this line, the club insisted that Cup Matches are to be
considered “official matches” as per the Regulations and constitute an
important competition for it. Moreover, the club held that due to the player’s
condition it was necessary for the player to train alone.
9.
Thereafter, the members of the Chamber took note that the player lodged his
own claim against the club on 13 October 2017, in which, in direct opposition to
Chiangrai’s point of view, the player maintained that he had a valid reason to
terminate the contract on 4 July 2017. In this regard, the player argued that the
club failed to re-register him in the League during the relevant transfer
window period, despite his substantial notice given to the club, which in his
opinion constituted an unilateral breach of the contract. Moreover, the player
held that he was not permitted to attend any training sessions with the team as
from 8 June 2017, without a valid reason, and rather considered that it was
related to his contractual status.
10.
Having evaluated the divergent opinions of the parties it was evident for the
DRC that the main issue to address in the matter at hand is if the player had just
cause or not to terminate the employment relationship on 4 July 2017, and
which party must be held liable for the consequences of the early termination
of the contract.
11.
In light of the above, the members of the Chamber considered important to first
recall the facts that remained either uncontested or acknowledged in order to
have a better overview of the dispute. In this respect, after a thorough analysis
of the positions of the parties and the documentation on file, the Chamber
recalled the following facts:
After signing the contract, the player got injured in January 2017.
The parties agreed that, due to the injury, the player would have surgery
in Australia.
Once in Australia, the player informed the club that after further medical
consultation he decided to undergo conservative treatment i.e. to not
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have surgery and that he would be back to the club around mid-April
2017.
The player returned to the club in April 2017 and joined trainings.
The parties exchanged several and numerous correspondence during the
period as from when the injury occurred until before the termination,
correspondence in which the player requested on several occasions to be
registered in the summer transfer window which would be opened in
June 2017 and that would be closed in July 2017.
The player was registered in the Thai Cup but was not registered for the
Thai League.
12.
Along this line, the members of the DRC wished to point out, as 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.
13.
In this regard, the Chamber duly took note that in the present matter, the player
as it has been acknowledged by the club, was not registered for the League and
was only registered for the Thai cup, which is a knock-out competition.
Although the DRC does not deem that is strictly necessary to explain to football
stakeholders such as the parties what a knock-out competition is, since the DRC
considered that they are surely aware on what type of competition it consists in,
nevertheless, the DRC considered, for the sake of clarity, that such a competition
can be defined as a type of elimination tournament where the loser of a matchup is immediately eliminated from the tournament.
14.
Therefore, in the case at hand, the DRC concluded that the player’s registration
only for the Thai Cup would entail that if Chiangrai would have lost in the first
round, the player would not have been eligible to play for the rest of the season.
The Chamber unanimously decided this cannot be considered valid.
15.
This led the Chamber to conclude that by refusing to register the Claimant in
the Thai League, i.e. a tournament which does not entail the possibility of an
automatic (early) sporting elimination, the Respondent was effectively barring
the potential access of the Claimant to competition and, as such, was violating
one of his fundamental rights as a football player.
16.
Moreover, the Chamber observed that club’s decision to not register the player
in the League was a unilateral decision of the club, done despite the several
requests the player had done in this regard, and from the documentation on
file, it cannot be established that this was temporary.
Chiangrai United FC, Thailand / Player Mark Robert Bridge, Australia & Western Sydney Wanderers FC, Australia
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17.
Furthermore, the DRC concluded that the club did not have a valid reason to
explain why the player was sent to train alone after 8 June 2017 after initially
been allowed to train with the team.
18.
On account of all the above circumstances, the members of the DRC highlighted
that, at the moment the player terminated the contract, the player had strong
reasons to believe the club was no longer interested in him. Such conduct
constitutes, in the Chamber’s view, a clear breach of contract. What is more, as
mentioned previously, the sole fact of not registering the player within the
league, constitutes in itself a serious breach of contract
19.
Consequently, the Chamber concurred that the player terminated the contract
with just cause on 4 July 2017 and that Chiangrai is to be held liable for the early
termination of the employment contact.
20.
Having established that the club is to be held liable for the early termination of
the employment contract, the Chamber focused its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of
the Regulations, the Chamber decided that the player is entitled to receive from
the club an amount of money as compensation for breach of contract in addition
to any outstanding payments on the basis of the relevant employment contract,
which in the matter at hand is not the case, since the player himself has explicitly
acknowledged receiving the month of July 2017.
21.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of the Chamber firstly recapitulated that, in accordance with art.
17 par. 1 of the Regulations, the amount of compensation shall be calculated,
in particular and unless otherwise provided for in the contract at the basis of
the dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the player under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
22.
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.
Chiangrai United FC, Thailand / Player Mark Robert Bridge, Australia & Western Sydney Wanderers FC, Australia
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23.
As a consequence, the members of the Chamber determined that the amount
of compensation payable by the Claimant 1/ Respondent 3 to the Respondent 1/
Claimant 2 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.
24.
Bearing in mind the foregoing as well as the counterclaim of the player, the
Chamber proceeded with the calculation of the monies payable to the player
under the terms of the employment contract until December 2019.
Consequently the Chamber concluded that the amount of USD 725,000 (i.e.
salaries as from August 2017 until December 2019) serves as the basis for the
determination of the amount of compensation for breach of contract.
25.
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 able to reduce his loss of income. According
to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
26.
In this context, the Chamber noted that during the overlapping period of time
until 31 December 2019, the player had signed an employment contract with
Western Sydney, valid from 18 July 2017 until 31 May 2019 by means of which
he was entitled to receive AUD 430,277 and that on 11 March 2019, the player
signed an employment contract with the Australian club, Mounties Wanderers
FC, valid as from 1 June 2019 until 17 October 2022, by means of which he
received AUD 42,000, and therefore he received the total amount of AUD
472,277, equivalent to USD 324,00.
27.
Moreover, the Chamber duly noted the player’s request for reimbursement of
flight ticket, and observed that that there is a contractual stipulation in the
contract entitling him to a flight ticket, which has been corroborated with
appropriate evidence.
28.
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 amounts of USD 401,000 and THB 59,405 to the player which was considered
reasonable and proportionate as compensation for breach of contract in the
case at hand.
29.
In addition, taking into account the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the club must pay to the player interest of 5% p.a. on the amounts of
Chiangrai United FC, Thailand / Player Mark Robert Bridge, Australia & Western Sydney Wanderers FC, Australia
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compensation, i.e. USD 401,000 and THB 59,405 as of the date of the player’s
claim, i.e. 13 October 2017 until the date of effective payment.
30.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further request filed by the player is rejected.
Equally and considering that the club was, overall, found to be in breach of
contract, the claim of Chiangrai is rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant 1 / Respondent 3, Chiangrai United FC, is rejected.
2.
The claim of the Respondent 1 / Claimant 2, Mark Robert Bridge, is partially
accepted.
3.
The Claimant 1 / Respondent 3, Chiangrai United FC, has to pay to the
Respondent 1 / Claimant 2, Mark Robert Bridge, w ithin 30 day s as from the
date of notification of this decision, compensation for breach of contract in the
amounts of USD 401,000 and THB 59,405 plus 5% interest p.a. on said amounts
as of 13 October 2017 until the date of effective payment.
4.
In the event that the amounts plus interest due to the Respondent 1 / Claimant
2, Mark Robert Bridge, in accordance with the aforementioned number 3. above
are not paid by the Claimant 1 / Respondent 3, Chiangrai United FC, within the
stated time limit, the present matter shall be submitted, upon request, to the
FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Respondent 1 / Claimant 2, Mark Robert Bridge,
is rejected.
Chiangrai United FC, Thailand / Player Mark Robert Bridge, Australia & Western Sydney Wanderers FC, Australia
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6.
The Respondent 1 / Claimant 2, Mark Robert Bridge, is directed to inform the
Claimant 1 / Respondent 3, Chiangrai United FC, immediately and directly of the
account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, FIFA may decide,
at the request of a party within five days of the notification of the motivated decision,
to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber).
Note related to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). 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. 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
Chiangrai United FC, Thailand / Player Mark Robert Bridge, Australia & Western Sydney Wanderers FC, Australia
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