Labour Disputes
Texto da decisão
REF FPSD-3237
Decision of the
Dispute Resolution Chamber
passed on 9 November 2021
regarding an employment-related dispute concerning the player Jonathan
David Ward Campbell
BY:
Philippe Diallo (France)
CLAIMANT:
Jonathan David Ward Campbell, USA
Represented by Menno Teunissen and Thomas Spee
RESPONDENT:
United City Football Club, Philippines
Page 2
REF FPSD-3237
I.
Facts of the case
1.
On 10 March 2021, the American player, Jonathan David Ward Campbell (hereinafter: the
Claimant), and the Philippine club, United City Football Club (hereinafter: the Respondent)
concluded an employment agreement (hereinafter: the contract) valid for a period of two
years from “one week prior to the first official training but in no circumstances later than 1
May 2021 until 1 November 2022 or until one (1) week after the last official match of the
Philippines Football League (PFL) season 2022”, whichever is later.
2.
Pursuant to schedule A of the contract, the Respondent undertook to pay to the Claimant
the following remuneration:
“a) First Year Season 2021:
P250,000.00 net without any deductions per month
b) Second Year Season 2022:
Shall the Player play in at least seventy (70%) percent of all official Club matches during the
2021 season (CL, Cup, League) then the salary of Player will be increased to P300,000.00 for
the 2022 season, with such salary increase to start one (1) week prior to the official start of
the preseason training.”
3.
Additionally, in accordance with schedule B of the contract, the Claimant was entitled to the
following benefits:
-
“Travel allowance - One (1) annual round-trip ticket in economy from home country to
Manila and back
Accommodation Allowance - P25,000.00 monthly”
4.
According to the Claimant on 11 July 2021, a director and coach of the Respondent informed
him “that he was no longer part of the club’s plans because he was not good enough and
that it is time to end the contractual relationship.”
5.
On 15 July 2021, the Respondent issued a termination letter to the Claimant, inter alia,
stipulating that, “we have to cancel your UCFC employment contract giving 30 days’ notice
as per local laws since we won’t be able to apply for your visa before the start of our league
which is to happen from 21 August onwards.”
6.
On 21 July 2021, the Claimant sent a final formal notice to the Respondent in which he stated
that he disagreed with the terms under which the contract was terminated, indicating that
the Respondent terminated the contract without just cause.
7.
In the same letter the Claimant requested payment of the following:
Page 3
REF FPSD-3237
(a) outstanding remuneration in the amount of PHP 500,000 net (June – July 2021 salaries),
(b) remaining value of the contract (August 2021 – November 2022) 15 months x 250.000,00
PHP 3,750,000 net ;
(c) Car and housing for 17 months (June 2021 – November 2022) x 25,000 in the total
amount of : PHP 375.000,00 net;
(d) Flight tickets for 1 round trip in the amount of PHP 75,000; and
(e) The following expenses in the total amount of USD 1468
-
Medical tests requested by the Club: USD 190;
Covid test Camboge PASTEUR: USD 75;
Covid test 2 Camboge NIPH: USD 130;
Shipping Luggage to Philippines: USD 1,017.45; and
Uber: USD 56,48
8.
On 25 July 2021, the Respondent replied and confirmed the termination of the Claimant’s
contract, stating that the decision was based on administrative formalities in Philippines.
9.
After the unilateral termination of the contract, the Claimant remained unemployed.
II. Proceedings before FIFA
10. On 5 August 2021, the Claimant filed the claim at hand before FIFA.
a. Position of the Claimant
11. The requests for relief of the Claimant, were that the Respondent is ordered to pay to the
Claimant:
(a) the amount of PHP 550,000 net corresponding to PHP 500,000 net as outstanding salaries
for the period between June – July 2021 and PHP 50,000 net as outstanding transport and
housing compensation for June – July 2022;
(b) the amount of PHP 4,200,000 net as compensation for the breach of contract;
(c) additional compensation of PHP 750,000 net;
(d) compensation for flights in the amount of PHP 75,000; and
(e) additional expenses in the total amount of USD 1468, corresponding to the following:
-
Medical tests requested by the Club: USD 190;
Covid test Camboge PASTEUR: USD 75;
Covid test 2 Camboge NIPH: USD 130;
Page 4
REF FPSD-3237
-
Shipping Luggage to Philippines: USD 1,017.45; and
Uber: USD 56,48
Plus 5% interest p.a. on the amounts above from the day the payment was due, until the
day of effective payment.
b. Position of the Respondent
12. According to the Respondent, at the signing of the contract, the Claimant did not obtain a
valid entry visa or work visa for the Philippines, in light of the travel restrictions imposed by
the Philippines due to the COVID-19 Pandemic in 2020.
13. The Respondent indicated that as of May 2021, “efforts were made by Respondent to acquire
an entry visa for the Claimant in order for him to enter the Philippines. Groundwork for the
processing of the work visa was underway as well.”
14. However, allegedly, travel to the Philippines were restricted and accordingly, it remained
difficult to obtain an entry visa for the Claimant.
15. On 12 July 2021, the Respondent mentioned that due to the surrounding circumstances, the
Respondent offered a settlement agreement to the Claimant. In this context, the Respondent
held that the conclusion of this agreement was an attempt to terminate the contract with
mutual consent, however the Claimant did not agree to the terms of the Settlement
Agreement.
16. Moreover, the Respondent wish to stipulate that it never took the performance of the
Claimant into account when it decided to terminate his contract on 12 July 2021.
17. The Respondent argued that it had just cause to terminate the contract of the Claimant,
based on the fact “that it could not validly obtain an entry visa (and by extension, a work visa)
for the Claimant due to factors outside of its control due to intervening events brought about
by the COVID-19 pandemic, and the specific responses by the Philippine Government, led to
Respondent’s inability to obtain the necessary entry visa despite earnest efforts.”
18. The Respondent further confirmed that it is aware of the principle of pacta sunt servanda,
however it referred to another principle known as clausula rebus sic stantibus, which “dictates
that a fundamental change of circumstances that was never contemplated by the parties
justifies a modification (or in this case, termination) of an agreement.”
19. In this context the Respondent indicated that in application of the said principle:
“both parties (either the Claimant or the Respondent) cannot be expected in good faith to
continue performing its obligations under the contract; the Respondent is unable to fully
Page 5
REF FPSD-3237
comply with its obligations due to factors outside of its control; similarly, the Claimant is
unable to comply with his obligations due to factors outside of his control.”
20. Accordingly, the Respondent deemed that it had just cause to terminate the contract and
that therefore, it cannot be held liable for breach of contract on that regard. Similarly, no
sanction should be imposed upon the Respondent.
21. In conclusion the Respondent wished to address some of the claims made by the Claimant
and therefore stipulated the following:
-
“the claims for medical tests requested by the club (USD 190.00), Covid test Camboge
PASTEUR (USD 75.00), Covid test 2 Camboge NIPH (USD 130.00), Shipping Luggage to
Philippines (USD 1,017.45), and Uber, training camp Dubai (USD 56.48) are all
unsubstantiated. No proof was presented by the Claimant showing that he had actually
incurred these expenses. As such, these claims should not be granted;
-
the contract explicitly and clearly states that the Player irresponsible for paying the
applicable taxes, as per their own tax declarations. Therefore, any amounts granted
should not be “NET OF TAXES” as prayed for by the Claimant.”
III. Considerations of the Single Judge of the Dispute Resolution
Chamber
a. Competence and applicable legal framework
22. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as the Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 5 August 2021
and submitted for decision on 9 November 2021. 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.
23. 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 Single Judge is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an American player and a Philippine club.
24. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 5 August 2021, the February 2021 edition
Page 6
REF FPSD-3237
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence
not filed by the parties, including without limitation the evidence generated by or within the
Transfer Matching System (TMS).
c. Merits of the dispute
26. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations, he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
27. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Claimant lodged a claim in front of FIFA against
the Respondent, indicating that the latter had terminated his contract without just cause.
28. The Single Judge observed that the Respondent argued that it had just cause to terminate
the contract of the Claimant based on circumstances beyond its control in light of the COVID19 pandemic and the restrictions which were implemented within the Philippines, which
according to the Respondent made it difficult to obtain a visa/work permit for the Claimant.
29. In this respect, the Single Judge outlined that as soon as an employment contract is signed
between a club and a player, rights and responsibilities ensue on both sides, without being
subject to any particular condition. In this respect, the Single Judge referred to the wellestablished jurisprudence of the Dispute Resolution Chamber and emphasised that, as a
general rule, it is the club´s duty and responsibility to act accordingly in order to obtain, if
necessary, a work permit or a visa for its players prior to the signing of an employment
contract or during its period of validity, in order for players to be able to legally enter a
particular country and be in a position to render their services to the club.
30. In continuation, the Single Judge referred to art. 18 par. 4 of the Regulations, which
stipulates, inter alia, that the validity of a contract may not be subject to the grant of a work
permit.
Page 7
REF FPSD-3237
31. Additionally, the Single Judge noted that the Respondent concluded the contract with the
Claimant on 10 March 2021, in the midst of the COVID-19 pandemic, moreover after it was
already aware of the various resolutions and measures which were instituted by the Philippine
government, as some of the documents issued by the Philippine government date back to
March 2020.
32. On analysing the documentation submitted by the Respondent relating to the efforts it made
to obtain the visa/work permit for the Claimant, the Single Judge remarked that even though
the Respondent did pursue the necessary steps to obtain the said visa/work permit, it however
cannot be determined if the visa/work permit application for the Claimant was accepted or
rejected.
33. Nonetheless, the Single Judge observed that the Claimant was ready to enter the Philippines
and remained available to render his services as per the employment contract concluded with
the Respondent, however, the Respondent had failed to carry out the necessary
arrangements in order for the Claimant to enter the country and render his services.
34. Finally, the Single Judge noted that the Respondent only contested the additional expenses
listed in the Claimant’s claim and did not contest any other claim of the Claimant, except for
indicating that any amounts to be granted to the Claimant should be “net of taxes”.
35. Taking all of the above into account, the Single Judge indicated that the Respondent had
failed to make the necessary arrangements in order for the Claimant to enter the country and
had equally failed to comply with its financial contractual obligations.
36. The Single Judge therefore concluded that the arguments of the Respondent are to be
rejected and that the Respondent had terminated the contract without just cause on 12 July
2021. Consequently, the Respondent should held liable for the early termination of the
employment contact without just cause.
ii. Consequences
37. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent and
decided that the Claimant is entitled to outstanding remuneration and compensation for
breach of contract.
38. The Single Judge concluded that the Respondent must fulfil its obligations as per the
employment contract up until the date of termination and in accordance with the general
legal principle of “pacta sunt servanda”.
39. Consequently, the Single Judge decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration at the time of the termination, in the amount PHP 550,000 net,
Page 8
REF FPSD-3237
corresponding to outstanding remuneration of PHP 275,000 net for June 2021 and PHP
275,000 net for July 2021.
40. What is more, based on its well-established jurisprudence as well as taking into account the
request of the Claimant, the Single Judge decided to award 5% interest p.a. on the above
amounts from the respective due dates until the date of effective payment.
41. In continuation, the Single Judge decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach
of contract in addition to any outstanding remuneration on the basis of the relevant
employment contract.
42. In this context, the Single Judge outlined that, in accordance with the said provision, the
amount of compensation shall be calculated, in particular and unless otherwise provided for
in the contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant under the existing contract and/or the
new contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
43. In application of the relevant provision, the Single Judge held that it had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a compensation payable by the contractual parties in the event of
breach of contract. 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.
44. Subsequently, and in order to evaluate the compensation to be paid by the Respondent the
Single Judge took into account the remuneration due to the Claimant in accordance with the
employment contract as well as the time remaining on the same contract, along with the
professional situation of the Claimant after the early termination occurred. In this respect, the
Single Judge pointed out that at the time of the termination of the employment
contract, i.e. on 12 July 2021, the contract would have run for the period August 2021 to
November 2022.
45. Consequently, taking into account the financial terms of the contract, the Single Judge
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to PHP 4,125,000 net, consisting
of PHP 250,000 monthly remuneration x 15 months plus accommodation allowance in the
total amount of PHP 375,000 net and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
Page 9
REF FPSD-3237
46. In continuation, the Single Judge remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant did not sign a new
employment agreement with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. Therefore, no further
mitigation of the amount of compensation shall take place.
47. Subsequently, in relation to the Claimant’s request for additional compensation, the Single
Judge turned his attention to art. 17 par. 1 lit. i) of the Regulations, according to which, if
the player did not sign a new contract following the termination of his previous contract, the
compensation shall be equal to the residual value of the contract that was prematurely
terminated.
48. With the above in mind, the Single Judge decided to reject the Claimant’s request for
additional compensation, since the player had remained unemployed after the termination of
his contract with the Respondent.
49. In view of all of the above, the Single Judge decided that the Respondent must pay the
amount of PHP 4,125,000 net to the Claimant as compensation for breach of contract
without just case, which the Single Judge considers a reasonable and justified amount as
compensation.
50. Taking into account the Claimant’s claim and the longstanding jurisprudence of the Dispute
Resolution Chamber in this respect, it was decided to award the Claimant interest of
5% p.a. as of 5 August 2021 on the amount of PHP 4,125,000 net.
51. Furthermore, with respect to the reimbursement of the flight ticket as claimed by the
Claimant, the Single Judge established that the there is a contractual basis, on this basis of
which the amount of PHP 75,000 is to be awarded to the Claimant.
52. The Single Judge decided to reject the request for payment of additional expenses as there is
no contractual basis for such claim, neither has the request been substantiated with additional
proof.
iii. Compliance with monetary decisions
53. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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.
54. 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
Page 10
REF FPSD-3237
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
55. 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. 24bis par. 2, 4, and 7 of the Regulations.
56. 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.
57. 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. 24bis par.
8 of the Regulations.
d. Costs
58. 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, the Single Judge decided that no procedural costs were
to be imposed on the parties.
59. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
60. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
Page 11
REF FPSD-3237
IV. Decision of the Single Judge of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jonathan David Ward Campbell, is partially accepted.
2.
The Respondent, United City Football Club, has to pay to the Claimant, the following
amounts:
(a) PHP 550,000 net as outstanding remuneration plus 5% interest p.a. from the respective
due dates until the date of effective payment as follows:
-
on the amount of PHP 275,000 net as from 1 July 2021
on the amount of PHP 275,000 net as from 1 August 2021
(b) PHP 4,125,000 net as compensation for breach of contract without just cause plus
5%interest p.a. from 5 August 2021 until the date of effective payment.
(c) PHP 75,000 as flight expenses plus 5% interest p.a. from 5 August 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. 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
▪
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7.
This decision is rendered without costs.
Page 12
REF FPSD-3237
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 13
REF FPSD-3237
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 14