Dispute Resolution Chamber
Texto da decisão
REF 20-01814
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021
regarding an employment-related dispute concerning the player Jeffrey Mallen
Christiaens
COMPOSITION:
Clifford J. Hendel (USA)/(France), Deputy Chairman
Stéphane Burchkalter (France), member
Muzammil bin Mohamed (Singapore), member
CLAIMANT:
Jeffrey Mallen Christiaens, Belgium
Represented by Santiago San Torcuato
RESPONDENT:
United City FC (formerly known as Ceres Negros F.C.), Philippines
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I. FACTS
1.
On 31 July 2018, the Belgian player Jeffrey Mallen Christiaens (hereinafter: the Player) and the
Philippine club Ceres Negros (hereinafter: the Club) concluded an employment agreement
(hereinafter: the Contract), valid from 31 July 2018 and expiring on 31 December 2020. In this
respect, it needs to be noted that according to the information in TMS, the account of the
Philippine club Ceres-La Salle FC is non-participating and has the status inactive, whereas the
account of United City Football Club (the alleged legal successor) is active and participating.
2.
Article 2 of Annex A of the Contract reads inter alia as follows
“ARTICLE 2: Remuneration:
A monthly compensation net of all possible taxes are:
For the first season from July 31 2018 to December 31, 2019, PHP 300,000
And for the second season from January 1, 2020 to December 31, 2020, PHP 350,000.000.
The compensation under this Agreement shall be paid monthly every 15th of the month by direct
deposit into the account of the Player. (…)”
3.
On 14 January 2020, the Player suffered a serious injury whilst playing for the Respondent.
4.
Art. 12 par. 1 of the contract holds the following clause: ‘The parties hereby agree and
acknowledge that the player’s participation in the club may be terminated prior to the expiry of
the agreement under the occurrence of any event as provided below: […] the club ceases its
operation’.
5.
On 13 March 2020, the Philippine Football Federation (PFF) has suspended all official matches as
a result of the COVID-19 pandemic.
6.
On 15 May 2020, the club decided to unilaterally reduce the player’s salary for May 2020 ‘up to
50%’.
7.
On 1 June 2020, the player received a unilateral termination of his contract from the club, based
on the fact ‘that the club was ceasing its operation’.
8.
On 15 June 2020, the club provided the player with a document referred to as ‘waiver, release
and quitclaim’, by means of which the player was asked to agree with the early termination of his
contract and that he would waive all his rights towards the club.
9.
On 8 July 2020, the club issued a statement that it was in talks for a possible investor to take over
the club, and consequently, on 23 July 2020, due to the change of ownership, the club renamed
itself to ‘United City Football Club’ and that the club would request for confirmation of the PFF
that it could participate under said name in the AFC Cup.
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10. On 19 August 2020, the player asked the club for an explanation about the changes in the club’s
management, and requested the club to pay him the remaining 50% of the salary for May 2020,
as well as the full salaries for June, July and August 2020, providing a 15 days’ deadline, however
to no avail.
11. On 5 September 2020, the player unilaterally terminated the contract, due to the outstanding
remuneration, based on art. 14bis of the FIFA Regulations.
II.
PROCEEDINGS BEFORE FIFA
12. On 14 December 2020, the player lodged a claim against the club before FIFA.
a. The claim of the Claimant
13. The Claimant requested the following amounts:
-
-
PHP 1,225,000 as outstanding remuneration, corresponding to the outstanding part of the
May 2020 salary in the amount of PHP 175,000, as well as the full salaries for June, July and
August 2020 in the amount of PHP 350,000 each;
PHP 1,400,000 as compensation for breach of contract, corresponding to the residual value
of the contract in the period between September and December 2020.
5% interest p.a. on said amounts as from the respective due dates.
14. In his claim, the player explains that on 13 March 2020, the Philippine Football Federation
suspended all official matches as a result of the COVID-19 pandemic.
15. According to the Claimant, on 8 July 2020, the Club informed by means of an official statement
that the club “is currently in talks with investors who will be taking over the management and
ownership of the club in preparation for the fourth season of the Philippines Football League as
well as the resumption of the campaign in the AFC Cup.
16. Moreover, on 23 July 2020, by means of an official statement, the Club informed that “Ceres
Negros FC” will apply for the permission with the Philippine Football Federation to re-name the
Club to “United City Football Club” and to continue participating in the AFC Cup.
17. The Claimant submits that the General Manager of the Respondent, Mr Patrick Ace B. Bright
expressly confirmed to the Player that the new club would play using the Club´s license.
18. The Claimant submits that he was informed, on 23 July 2020, of the alleged official change of
ownership in the Club.
19. The Claimant further submits that the jurisprudence of the DRC has constantly established that
the extended failure in time entitles the harmed party to resolve the employment agreement with
just cause. In this regard, the player further explains that since the club did not reply to his default
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letter dated 19 August 2020, he could have understood that the club was not interested in
fulfilling its obligations anymore.
20. In order to justify that United City F.C shall be considered the sporting successor of the original
debtor, Ceres Negros F.C., the Claimant deems convenient to highlight the following essential
elements:
a. The web-based encyclopaedia Wikipedia refers to United City F.C. and Ceres Negros F.C.
as the same Club.
b. new Club’s official website refers to the same history and sporting achievements of Ceres
Negros F.C
c. The official website states “As Ceres–Negros, the club was a three-time Philippines football
League champion (2017, 2018, and 2019) and winner of the 2019 Copa Paulino
Alcantara”.
d. Both clubs use the same founding year (i.e. 2012).
e. Both clubs play at the same stadium, (i.e. Panaad Park and Stadium).
f. In 2020 season and re-named as United City F.C., competes in the Philippines Football
League (PFL), the top-tier league in Philippine football, which is the same division where
the Respondent competed as Ceres Negros F.C., in the season before.
g. 16 players who played for the Respondent as Ceres Negros F.C. in the last season remain
in United City F.C. this season
h. The General Manager of Ceres Negros F.C., Patrick Ace Bright, is the current General
Manager and Team Coordinator of United City F.C.
i. At the time of the claim, in the TMS system appears only the information and relevant
contacts of Ceres Negros F.C
21. The Claimant further submits that according to CAS and DRC jurisprudence, the identity of a club
is constituted by elements such as its name, colours, fans, history, sporting achievements, shield,
trophies, stadium, roster of players, historic figures, etc. that allow it to distinguish from all the
other clubs. Hence, the prevalence of the continuity and permanence in time of the sporting
institution”.
22. In the view of the Claimant, the CAS jurisprudence is categorical and considers that “a sporting
entity identifiable by itself that, as a general rule, transcends the legal entities which operate it”
(CAS 2013/A/3425 at par. 139).
23. In conclusion, the player deems that he had a just cause to terminate the contract.
b. Position of the Respondent
24. Despite being invited to provide an answer to the claim, the Respondent failed to submit a reply
to FIFA within the prescribed deadline.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
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a.
Competence and applicable legal framework
25. 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 submitted to FIFA on 14 December 2020. Taking into account the wording
of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
26. 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 August 2020), the Dispute Resolution
Chamber is competent to deal with the matter at stake. The matter concerns an employmentrelated dispute with an international dimension between a Belgian player and a Philippine club,
and the competence is not disputed by the parties.
27. In continuation, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (October 2020 edition), and considering that
the claim was lodged on 8 December 2020, the March 2020 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b.
Burden of proof
28. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 Chamber stressed the wording of art. 12 par.
4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.
29. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the
application of the Regulations, any documentation or evidence generated or contained in TMS.
c.
Merits of the dispute
30. The competence of the DRC and the applicable regulations having been established, the members
of the Panel 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. However, the Chamber 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.
31. First of all, the members of the Chamber acknowledged that, on 31 July 2019, the Claimant and
the Respondent had concluded an employment contract valid until 31 December 2020.
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32. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the
Respondent seeking payment of the total amount of PHP 2,625,000, asserting that the
Respondent had not (fully) fulfilled its contractual obligations towards him. After not being paid
his outstanding salaries as per the Contract, the Claimant confirmed on 5 September 2020 that
was unilaterally terminating the Contract with the Respondent.
33. In this respect, the Chamber was eager to emphasise that the Claimant pointed out that the
Respondent failed to pay him his full salary for the month of May 2020, as it allegedly unilaterally
reduced said salary with 50%, as a result of the outbreak and financial consequences of the
COVID-19 pandemic. While analysing the relevant circumstances surrounding this variation of the
contract, the members of the Chamber noted that the salary reduction for 50% as of the month
May 2020, appears to have been made unilaterally and without an attempt to reach an amicable
settlement with the Claimant. As such, the members of the Chamber concluded that the variation
to the contract was not made in line with FIFA’s COVID-19 Guidelines and can therefore not be
upheld.
34. What is more, to unilateral termination of the contract made by the Respondent, the members of
the Chamber noted that as no answer has been received from the Respondent in this matter, they
are not in a position to determine the nature of that alleged termination. However, it is clear from
the evidence on file that the player himself terminated the Contract on 5 September 2020, when
more than 3 monthly salaries were outstanding and having sent a default notice to the
Respondent, to no avail.
35. On account of the above circumstances, the Chamber decided that the Claimant had just cause
to unilaterally terminate the employment relationship on 5 September 2020 and that,
consequently, the Respondent is to be held liable for the early termination of the employment
contact.
36. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences
of the early termination of the employment contract with just cause by the Claimant.
37. In this respect, the Chamber deemed it relevant to point out that the new entity United City FC,
operates under a different name than the original employer of the Player, but uses the same
stadium, the same year of foundation the league it competes in and the majority of the employees
that were also employed by the old entity, Ceres Negros FC. What is more, the Philippine Football
Federation confirmed that United City FC can be considered as the sporting and legal successor
of Ceres Negros FC.
38. As a result of the foregoing, the Chamber deemed that United City FC, as the sporting and legal
successor of Ceres Negros FC, is to held liable for the payment of outstanding remuneration and
compensation for breach of contract.
39. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations
as per employment contract up until the date of termination of the contract in accordance with
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the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that
the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the
time of the termination i.e. the amount of PHP 1,225,000, consisting of the pro rata outstanding
salary for the month of May 2020 and the full salaries for June, July and August 2020.
40. What is more, in line with its longstanding jurisprudence, the Chamber decided to award 5%
interest p.a. each salary as from the date in which each salary was due as per the Contract, this is
the 16th day of each month.
41. In continuation, the Chamber 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 salaries on the basis of the relevant employment contract.
42. In this context, the Chamber outlined that, in accordance with 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 Chamber held that it first of all 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 Chamber 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
members of the Chamber 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
Chamber pointed out that at the time of the termination of the employment contract on 5
September 2020, the contract would run for another 4 months, i.e. until 31 December 2020.
Consequently, taking into account the financial terms of the contract, the Chamber 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 1,400,000 and that such amount shall serve as the
basis for the final determination of the amount of compensation for breach of contract.
45. In continuation, the Chamber remarked that following the early termination of the employment
contract at the basis of the present dispute the Claimant had not being able to mitigate his
damages. As a result, the Chamber deemed that no further mitigation should be applied to the
residual value of the contract.
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46. In view of all of the above, the Chamber decided that the Respondent must pay the amount of
PHP 1,400,000 to the Claimant as compensation for breach of contract without just case, which
is considered by the Chamber to be a reasonable and justified amount as compensation.
47. Finally, in line with its longstanding jurisprudence, the Chamber decided to award 5% interest
p.a. on the amount of PHP 1,400,000 as from the date of claim, i.e. 14 December 2020.
48. Furthermore, taking into account the considerations above, the Chamber referred to par. 1 and 2
of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding
body shall also rule on the consequences deriving from the failure of the concerned party to pay
the relevant amounts of outstanding remuneration and/or compensation in due time.
49. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players, either
nationally or internationally, up until the due amounts are paid and for the maximum duration of
three entire and consecutive registration periods.
50. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amounts due to the Claimant within 45 days as from the moment in which the
Claimant, following the notification of the present decision, communicates the relevant bank
details to the Respondent, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
51. Finally, the Chamber 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. 3
of the Regulations.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Jeffrey Mallen Christiaens, is accepted.
2.
The Respondent, United City FC, has to pay to the Claimant, the following amounts:
-
Philippine Peso (“PHP”) 1,225,000 net as outstanding remuneration plus 5% interest p.a.
as follows:
i. On PHP 175,000 plus 5% interest as from 16 May 2020;
ii. On PHP 350,000 net plus 5% interest as from 16 June 2020;
iii. On PHP 350,000 net plus 5% interest as from 16 July 2020;
iv. On PHP 350,000 net plus 5% interest as from 16 August 2020;
-
PHP 1,400,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 6 September 2020.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount mentioned under point 2.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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) 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 20 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
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