Dispute Resolution Chamber
Texto da decisão
REF 20-01283
Decision of the
Dispute Resolution Chamber
passed on 28 April 2021
regarding an employment-related dispute concerning the player Oswaldo Henriquez
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Club Kerala Blasters, India
Represented by Mr. Ludovic Deléchat
RESPONDENT 1:
Oswaldo Henriquez, Colombia
Represented by Mr. Wallace Joacir Alves de Oliveira and Mr. Antonio
Ourivio Amorim
RESPONDENT 2:
Club Bnei Sakhnin FC
Represented by Mr. Omri Applebaum
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I.
FACTS OF THE CASE
1.
On 14 June 2020, the Indian club, Kerala Blasters FC (hereinafter: the club or the Claimant),
and the Colombian player, Mr. Oswaldo Henriquez (hereinafter: the player or the
Respondent 1) signed an employment contract valid as from 1 September 2020 until 31
May 2021 (hereinafter: the employment contract).
2.
In accordance with clause 2 of the employment contract coupled with clause 1 of its
Schedule 1, the club had “a unilateral right to renew [the employment contract] for further
1 (one) year” and “in case the club exercises its options, it has to do so before 31 May 2021
and inform the player in writing, failing which the club shall lose its right of such renewal”.
3.
Pursuant to clause 1 of the Schedule 1 to the employment contract, the club undertook to
pay to the player the following remuneration:
a. Year 1: USD 110,000 net, to be paid in 9 equal instalments as from 1 September 2020
until 31 May 2021; and
b. Year 2: USD 160,000 net, to be paid in 12 equal instalments as from 1 June 2021 until
May 2022.
4.
Additionally, clause 6.6 of Schedule 2 to the employment contract provided for cases of
force majeure as follows:
“Force Majeure: Subject to the other provisions of this Agreement, the failure by a Party to
fulfill any of its obligations under this Agreement shall not be considered to be a breach of,
or a default under, this Agreement insofar as the inability arises from an event of Force
Majeure, provided that the Party affected by that event has taken reasonable precautions,
has duly communicated the occurrence of the event to the other Party, and has taken due
care and attempted to mitigate the consequences of such event, all with the objective of
carrying out the terms of this Agreement without delay. For the purposes of this Agreement,
“Force Majeure” means an event or circumstance which is beyond the reasonable control
or foresight of a Party and which makes a Party’s performance of its obligations impossible
and includes but is not limited to wars, acts of terrorism, civil riots, hostilities, public
disorder, epidemics, fires, acts of God, earthquake, flood, natural disaster, Court orders or
governmental restrictions and actions, acts and decisions of regulatory and sports
authorities”.
5.
Finally, as to the applicable law and dispute resolution, clause 7 of the Schedule 2 to the
employment contract established, inter alia, the following:
“7.2. In the event a dispute arises between the Club and the Player regarding any other
issue than termination, both Parties agree to seek to resolve the dispute in good faith
through a process of good faith negotiations and discussions.
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7.3. If a dispute between the Club and the Player is not resolved within 10 days, of the
process contemplated in paragraph 7.2, then the dispute will be referred for solution to
mediation under the relevant procedure set out in the AIFF regulations for status and
transfer of players.
7.4. All disputes relating to termination shall be referred to the AIFF Player Status Committee
for adjudication directly without undergoing the process of the good faith negotiations and
mediation referred to in paragraphs 7.2 and 7.3 unless both the Player and the Club
mutually decide otherwise.
7.5. At any stage of the good faith negotiation process or the mediation process referred
to in paragraphs 7.2 and 7.3, both the Player and Club can mutually agree to refer the
matter to the AIFF Player Status Committee for an urgent decision and, in such
circumstances the requirement for the 10 day windows for good faith negotiations and
mediation under paragraphs 7.2 and 7.3 will not apply.
7.6. If the dispute is not within the jurisdiction or scope of the AIFF Player Status Committee
then it shall be referred to arbitration under a sole arbitrator appointed by mutual consent
under the provisions of the Arbitration and Conciliation Act 1996 or any modification
thereof then in effect. The Arbitration shall be in English and the seat and venue of
Arbitration shall be Hyderabad. Subject to the above, the Courts at Hyderabad shall have
sole and exclusive jurisdiction in respect of all matters addressed under this paragraph 7.6.
7.7. For avoidance of any doubt, in case of any dispute still prevailing between the Player
and the Club after the steps mentioned in paragraphs 7.2, 7.3, 7.4, and 7.5, and if the
dispute is not referred to arbitration under paragraph 7.6, the dispute shall be referred to
the Players' Status Committee and the Dispute Resolution Chamber of FIFA”.
6.
On 23 July 2020, the player sent a termination notice to the club. Accordingly, the player
referred to the COVID-19 pandemic and to the FIFA Guidelines in order to inform that
“Because this type of extraordinary and unanticipated event, the COVID-19 pandemic is so
radically different from the ordinary risks and challenges of fulfilling preliminary contract
with you, and because it makes my performance so much more difficult and dangerous
than expected, I am communicating you to excuse me from the contract. Through no fault
of my own, my performance has become effectively impossible, and so my failure to fulfil
the preliminary contract does not count as a breach of contract.” Moreover, the player
emphasised that “I am not in a position to put my family in risk. My decision is based on
the advice of relevant international health authorities”. Finally, the player stated that
“parties to a contract are always free to waive their rights under a force majeure clause”.
7.
On the same day, i.e. 23 July 2020, the club replied to the player’s correspondence,
expressing that it was “extremely shocked”, in particular since “the Company shared the
contract draft and we were pleased when you executed the Contract last month”. As such,
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the club informed the player that it was “expecting and looking forward to you joining the
KBFC team for the upcoming 2020-2021 football season during the Term”.
8.
Likewise, the club explained that it was working with the authorities with regard to COVID19 and that it wanted to ensure the health of all its contracted players. Furthermore, the
club rejected the player’s argumentation that COVID-19 constitutes a force majeure
situation, thereby referring to the FIFA Guidelines and FAQ. The club also contested the
player’s position by referring to art. 6.6 of Schedule 2 to the employment contract, stating
that said contract was executed on 14 June 2020 and that the contract’s effects would only
start on 1 September 2020, thereby meaning that the player’s position “is currently
untenable and without merit” – in particular given that the force majeure situation, i.e.
COVID-19, existed on the day that the player signed the contract and that there are no new
developments. The club further emphasised that the health and well-being of its players
was very important and that the club would act in accordance with the recommendations
of the governmental authorities. At the end, the club requested the player comply with his
obligations under the employment contract.
9.
Between 26 July and 30 July 2020, the player and a club’s representative discussed the
situation via Whatsapp. On its part, the player expressed his fear of going to India to be
quarantined in a hotel thereby putting his family at risk and not being able to play football.
In this regard, the player mentioned that many leagues were resuming and the he needed
to play football as soon as possible. On the other hand, the club stated that its region was
one of the safest places with regard to COVID-19 in India and that the club had put in place
health protocols that would ensure the player’s safety.
10.
On 10 August 2020, the club and the Israeli club, Bnei Sakhnin FC (hereinafter: Bnei Sakhnin
or the Respondent 2), signed an employment agreement valid as from 1 August 2020 until
31 May 2021 (hereinafter: the new employment contract).
11.
In accordance with clause 6 of the new employment contract, Bnei Sakhnin undertook to
pay the player a monthly remuneration of ILS 42,260 during the first season.
12.
Additionally, clause 9 of the new employment contract also granted Bnei Sakhnin the option
to unilaterally renew its relationship with the player for the season of 2021/2022. In this
scenario, the player would be entitled to a monthly remuneration of ILS 68,000.
13.
In parallel, on 18 August 2020, the player’s representative wrote to the club referring to
“our negotiations in last days” in order to offer “a counter-proposal to the US 20,000.00
offered by you to reach an amicable solution to the matter at hand as following: -.US
10,000.00 to be paid in 10 instalments of US 1,000.00”.
14.
On 19 August 2020, the club replied to the correspondence refusing the offer and
indicating that the fact that the player signed with Bnei Sakhnin was a clear violation of the
employment contract, as well as it had caused damages to the club. In this regard, the club
granted the player 2 days in order to proceed the payment of USD 20,000 in one instalment
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or in the “maximum of 3 instalments”, under penalty lodging a formal complaint before
FIFA’s Dispute Resolution Chamber.
15.
On 20 August 2020, the player reiterated that the termination of the contract was lawful
as based on a force majeure situation, in line with clause 6 of the Schedule 2 to the
employment contract. The player further contested the competence of FIFA to hear any
dispute arising from the employment contract, as well as he argued that he joined Bnei
Sakhnin in order to “keep fit” since “the leagues already have official protocols and where
the leagues already have a schedule to take place and an official round as is the case of the
Israeli League”. With regard to the compensation, the player offered USD 12,000 to be paid
in 10 instalments of USD 1,200, as well as an official statement whereby he could explain
the reason why he could not join the club.
16.
On 24 August 2020, the club contested the player’s position with regard to the force
majeure and informed him that the Indian Super League would resume in November 2020.
As such, the club granted the player a final deadline until 28 August 2020 in order to pay
the amount of USD 20,000 as compensation for breach of contract.
17.
On the same day, i.e. 24 August 2020, the player reiterated the content of his former letter
and informed the club that he could not afford the payment of USD 20,000.
II.
PROCEEDINGS BEFORE FIFA
18.
On 8 September 2020, the club filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the club
19.
In its claim, the club first held that the player had sent it a termination notice after only 1
month of the signature of the employment contract. In this respect, the club underlined
that the COVID-19 pandemic was already known and, therefore, that the situation was not
extraordinary and unforeseeable at the time the player accepted to join the club.
20.
The club then referred to the COVID-19 Guidelines and stated that “whether or not a force
majeure situation (or its equivalent) exists in the country is a matter of law and fact, which
must be addressed on a case-by-case basis vis-à-vis the relevant laws that are applicable to
any specific employment or transfer agreement. Indian law is silent in this respect and again
it is important to highlight that the Player knew the situation when he signs for the Club”.
21.
Subsequently, the club mentioned that on 10 August 2020, the player’s representative
contacted the club in order to find an amicable solution but the offer was lower than the
expected. Then, on 28 August 2020, the player signed an employment contract with Bnei
Sakhnin, reason why the club “strongly believes that Bnei Sakhnin blatantly induced the
Player to breach his employment contract with the Club.”
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22.
With regard to compensation, the club highlighted that the employment contract did not
contain any compensation clause. Therefore, it referred to art. 17 of the FIFA Regulations
on the Status and Transfer of Players. By doing so, the club made the following remarks:
a. the player came from Brazil and the club did not pay any transfer fee. Moreover, as the
player was 30 years old, no training compensation was due;
b. the club lost the chance to transfer the player against the payment of a transfer fee;
c. according to the website transfermarkt.com, the player had a mercantile value of USD
725,000 when he signed with Bnei Sakhnin; and
d. considering that it is difficult to quantify the replacement costs for the club, the Dispute
Resolution Chamber should take into account the residual value of the employment
contract, i.e. USD 270,000 corresponding to the period from 23 July until June 2022.
23.
In light of the above, the club requested the payment of USD 995,000 from the player and
Bnei Sakhnin, to be considered jointly and severally liable.
24.
Finally, the club also requested the imposition of sportive sanctions on the player and on
Bnei Sakhnin.
b.
Position of the player
25.
In his reply, the player initially challenged FIFA’s competence to hear the dispute, based on
the wording of clause 7 of the Schedule 2 to the employment contract.
26.
As to the substance, the player explained that when he signed the employment contract
with the club, the Indian authorities were doing a good job in controlling the pandemic.
However, as a result of the social panic and the economic recession, the lockdown was
lifted, leading to an increase in daily cases and deaths, as well as putting India “ahead with
the fastest infection rate worldwide already in July 2020”.
27.
In this context, the player provided numerous press articles and statistics regarding the
situation of COVID-19 in India by the time of the termination of the employment contract
and until the beginning of this proceeding.
28.
With the above in mind, the player explained that he tried to find a consensus with the
club’s sports director regarding his contractual situation, but the latter refused to find an
amicable solution to the case.
29.
In any event, the player explained that he decided to terminate the employment contract
as per clause 6.6 of Schedule 2, i.e. the force majeure clause. Again, he emphasised that
the situation of COVID-19 had become much worse than at the time that he signed the
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employment contract. Moreover, the player argued that he felt in danger and thus took the
appropriate measures to protect himself and his family.
30.
In continuation, the player underlined that the force majeure clause refers to any danger
“epidemic” meaning that “the change of the situation of Covid-19 in India falls within the
scope of the contract signed by the parties and the Player’s rights”. The player further stated
that he believed the danger to be “serious and imminent” based on the statistics and data
published by the relevant health authorities. Alike, the player held that inadequate
healthcare system “which is not prepared for an emergency of this magnitude” was also
taken into account.
31.
What is more, the player stressed that the worsening of the pandemic in India fulfilled the
three criteria related with the concept of force majeure: externality, unpredictability and
irresistibility. Consequently, the player deemed that the performance of the employment
contract became “at least partly impossible”. In this respect, the player recalled CAS’
jurisprudence in order to conclude that it has already been recognised “that an exceptional
unforeseeable circumstance must be accepted a force majeure situation that releases a
party from complying with its contractual obligation”.
32.
On the other hand, the player argued that he needed “to return to his sports activity since
he is obliged to maintain his pace and fitness: indeed, his career, market value – and ability
to provide his services as professional football player – depend on it. Israel appeared to be
an international model of coronavirus success. Reason why the Player decided to join to a
sport team in Israel as soon as possible, a country where had largely contained the spread
of Covid-19 and the mortality rate was far better than many other countries in the World”.
33.
The player also underlined that his salary with Bnei Sakhnin is lower than the one agreed
with the club, thereby demonstrating that he did not move for financial reasons.
Furthermore, the player deemed to have taken reasonable steps to mitigate damages and
took immediate efforts to limit any potential impact of his withdrawal. As such, the player
offered up to USD 12,000 to the club, as well as to make a public statement via his social
networks to explain the situation. However, the club rejected any attempt to settle the
controversy amicably and claimed USD 20,000 – even though it did not suffer any damages,
since there was no transfer fee paid for the player.
34.
Against such background, the player was of the opinion that he complied with the force
majeure clause and with FIFA’s Covid-19 Guidelines since he made all efforts to avoid a
dispute.
35.
Finally, as to the compensation claimed by the club, the player argued that it did not provide
any evidence related to potential losses, which could justify the payment of compensation.
36.
In addition, the player considered to have notified the termination with one month in
advance of the commencement date of the employment contract, thereby enabling the
club to find a replacement and sign another player – especially when considering that the
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start of the Indian Super League was postponed to November 2020 and that the registration
period in India ended on 20 October 2020.
37.
Subsequently, the player once again highlighted that the club did not pay any transfer fee
to acquire his services. Thus, he maintained that no damages were caused and that any
amount awarded should be considered as unjust enrichment.
38.
Lastly, the player contested the imposition of sporting sanctions and argued that art. 24bis
of the FIFA Regulations on the Status and Transfer of Players is not applicable to the present
matter.
c.
Position of the Bnei Sakhnin
39.
In its reply, Bnei Sakhnin opposed the club’s requests, arguing that the claim at stake is only
“a wrongful attempt to extort monies that it does not deserve”.
40.
Initially, Bnei Sakhnin informed that it concluded the new employment contract with the
player “under the full impression that the Player is a free agent and eligible to sign the
agreement and to register at the Club”. What is more, Bnei Sakhnin explained that it relied
on objective evidence that the player was not engaged with any other club. Bnei Sakhnin
further pointed out that it was never approached by the Claimant in order to contest the
registration of the player and was only surprised by its position upon receiving the claim.
41.
Subsequently, Bnei Sakhnin argued that the club was negligent by not completing the
transfer and registration of the player in the Transfer Match System (TMS). Thus, Bnei
Sakhnin stated that it could not have known that the player was not free to join.
42.
In light of the above, Bnei Sakhnin insisted that it took no part in any inducement nor in
the termination of the employment contract between the player and the club.
43.
As to the signing of the player, Bnei Sakhnin explained that in July 2020, the player’s
representative, Mr. Itamar Keinan (hereinafter: Mr. Keinan), approached its coach and
offered the player’s services for free. Then, Bnei Sakhnin supposedly made a background
check of the player’s contractual situation, which confirmed the information provided by
the Mr. Keinan.
44.
In support of its allegations, Bnei Sakhnin outlined that the employment contract with the
club was signed on 14 June 2020 and, until the conclusion of the new employment
contract, the club had never registered the player in the TMS. Consequently, Bnei Sakhnin
explained that it proceeded to the registration of the player in the TMS directly from his
former club in Brazil, Vasco da Gama. Furthermore, Bnei Sakhnin informed that the
International Transfer Certificate (ITC) was issued without any difficulty and/or restriction.
45.
In continuation, Bnei Sakhnin informed that, until that day, the player was part of the team
and had played full 90 minutes in all of the Israeli club’s league matches. Therefore, Bnei
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Sakhnin claimed to have acted in good faith while signing the player for sportive purposes
only.
46.
III.
Finally, Bnei Sakhnin concluded, inter alia, the following:
a.
a claim of nearly USD 1 million had to be proved with clear evidence and beyond any
doubt, which is not the case in the present matter;
b.
the amount requested by the club is fifty times higher than the USD 20,000 that it was
requesting from the player following the termination of the employment contract;
c.
the club had never register the player in the TMS when it could have done so for more
than 2 months, i.e. since 14 June 2020. Therefore, the club was not actually interested
in employing the player, but only in an eventual compensation for the breach;
d.
the signing of the player was public announced by Bnei Sakhnin and the club had
never contacted it in order to discuss the registration; and
e.
alternatively, the club was severally negligent and, in any case, did not suffer any
damages.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
47.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 8 September 2020 and
submitted for decision on 28 April 2021. Taking into account the wording of art. 21 of the
January 2021 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.
48.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed 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 February 2021), the Dispute
Resolution Chamber is in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Brazilian player, an Indian club and an Israeli club.
49.
However, the DRC also acknowledged that the player contested the competence of FIFA’s
deciding bodies on basis of the wording of the employment contract, which supposedly
contained a jurisdiction clause in favour of the All India Football Federation Players’ Status
Committee (hereinafter: the AIFF PSC).
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50.
To this extent, the DRC went to analyse whether the employment contract at the basis of
the present case actually contained a clear and exclusive jurisdiction clause in favour of the
AIFF PSC. By doing so, the DRC observed that there is no such clause included in the
aforementioned contract. On the contrary, the DRC noted that the employment contract
contains a series of contradictory references to the competence of both sportive courts and
arbitration, such as clauses 7.3, 7.4, 7.5 and 7.6. What is more, the Chamber also noted
that clause 7.7 expressly established that if the dispute was not referred to arbitration, it
should be referred to FIFA.
51.
On the basis of said provisions, the members of the Chamber concurred that it cannot be
established with sufficiently clarity which of the referred decision-making bodies, if any,
would be competent to hear the present dispute. Therefore, considering the absence of a
clear and unequivocal jurisdiction clause in compliance with the DRC well-established
jurisprudence, the members of the Chamber unanimously decided to dismiss the arguments
raised by the player.
52.
Finally, 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 Player (edition February 2021), and
considering that the present claim was lodged on 8 September 2020, the August 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
53.
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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
54.
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.
55.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
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i. Main legal discussion and considerations
56.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the player had just cause
to terminate the employment contract and the consequences that follow. The Chamber
equally took due note of the player’s argumentation regarding the COVID-19 pandemic.
57.
In this context, the members of the Chamber highlighted that FIFA issued a set of guidelines,
the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, it was also outlined that on 11 June 2020,
FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides
clarifications on the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters.
58.
Analysing the concept of a situation of force majeure, the members of the Chamber also
stressed that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID19 FAQ, FIFA did not declare that the COVID-19 outbreak was a force majeure situation in
any specific country or territory, or that any specific employment or transfer agreement was
impacted by the concept of force majeure.
59.
In other words, in any given dispute, it is for a party invoking force majeure to establish the
existence of said event under the applicable law/rules as well as the consequences that
derive in connection thereto. The analysis of whether a situation of force majeure existed
has to be considered on a case-by-case basis, taking into account all the relevant
circumstances.
60.
Following these general observations, the Chamber observed that, in the case at stake, the
player signed the employment contract after approximately six months of the pandemic
outbreak (i.e. on 14 June 2020). Thus, the members of the DRC were firm to determine
that the player was fully aware of the pandemic’s situation, as well as of his contractual
obligations towards the club. Alike, the members of the Chamber also deemed it important
to consider that the player signed the new employment contract with a second club after
only two months of the termination of his previous employment relationship – and also
during the pandemic.
61.
In light of the above, the DRC unanimously concluded that evidence submitted by the player
was not capable of demonstrating that the situation he faced was to be legally considered
a situation of force majeure. Likewise, the Chamber used the same reasoning to determine
that the content of clause 6.6 of Schedule 2 to the employment contract could not be
deemed as a valid reason for the termination, since its wording is generic and the pandemic
background was already known by the time of the signature.
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62.
Based on the foregoing, the DRC concluded that the player had not provided a valid
justification for the premature termination of the employment contract before entering into
force. Consequently, the DRC decided that the player terminated the employment contract
without just cause.
ii. Consequences
63.
Having stated the above, the members of the Chamber turned their attention to the
consequences of the termination of the employment contract without just cause by the
player and decided that the club is entitled to receive compensation for breach of contract.
64.
In this respect, 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, with due consideration for the law of the country
concerned, the specificity of sport, and any other objective criteria. These criteria shall
include, 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, the fees and expenses paid or incurred by the former club
(amortised over the term of the contract) and whether the contractual breach falls within a
protected period.
65.
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 contract at the basis of
the matter at stake.
66.
As a consequence, the members of the Chamber determined that the amount of
compensation payable to the club 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. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body. In this regard, the Chamber stated
beforehand that each request for compensation for contractual breach has to be assessed
by the Chamber on a case-by-case basis taking into account all specific circumstances of
the respective matter.
67.
In order to estimate the amount of compensation due to the club in the present case, the
Chamber first turned its attention to the financial terms of the former contract with the
club and the new contract with Bnei Sakhnin, the value of which constitutes an essential
criterion in the calculation of the amount of compensation in accordance with art. 17 par.
1 of the Regulations. The Chamber deemed it important to emphasise that the relevant
compensation should be calculated based on the average fixed remuneration, i.e. excluding
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any conditional or performance related payment, agreed by the player with his former club
and his new club, as well as considering the period of time remaining on the employment
contract signed between the player and the club.
68.
At this point, the Chamber went to analyse the duration of the employment contract and
observed that it was originally valid as from 1 September 2020 until 31 May 2021 (i.e. 9
months). Additionally, the Chamber also took due note of the fact that, in accordance with
clause 1 of the Schedule 1, such term could be unilaterally extended by the club until 31
May 2022.
69.
The DRC then recalled its long-standing jurisprudence according to which, in general,
potestative clauses, i.e. clauses that contain obligations which fulfilment are conditional
upon an event that one party entirely controls, can not be applied, since they limit the rights
of the other contractual party in an excessive manner and lead to an unjustified
disadvantage of the latter towards the other.
70.
In this respect and after having analysed the documentation on file, the Chamber outlined
that the extension described in clause 1 of the Schedule 1 to the employment contract was
a sole prerogative of one of the parties to the employment contract (i.e. the club).
Furthermore, the Chamber stressed that the employment contract was terminated by the
player before the parties started executing it, hence, before the club having exercised its
potential right of unilateral extension. Along those lines, the DRC found that such extension
shall not be taken into consideration for the calculation of the compensation due to its
potestative nature.
71.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the fixed
remuneration payable to the player under the terms of both the employment contract
signed with the club and the new employment contract signed with Bnei Sakhnin, for the
period of 9 months i.e. from 1 September 2020 until 31 May 2021.
72.
To this extent, the DRC observed that, as per the employment contract signed with the
club, the player was entitled to a total remuneration of USD 110,000, whereas as per the
new employment contract signed with Bnei Sakhnin, the player was entitled to an
approximate a total remuneration of USD 130,200, for the overlapping period.
73.
Accordingly, the Chamber concluded that, for the relevant period, the player’s average
remuneration amounts to USD 120,100 and that such an amount shall serve as the basis
for the final determination of the amount of compensation due for breach of contract.
74.
For the sake of completeness, the Chamber wished to address the other criteria considered
by the club in its claim. By doing so, the DRC concurred that it could not establish to a
comfortable satisfaction degree, any other damages suffered by the club. The Chamber
equally stressed that, since the club firstly engaged the player for free and the employment
contract was terminated before entering into force, the player’s mercantile value as alleged
by the Claimant had to be considered speculative only.
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75.
Based on the abovementioned considerations, the DRC unanimously decided that the total
amount of USD 120,100 was to be considered a reasonable and justified compensation for
breach of contract in the case at hand. With regard to the claimed interest, the Chamber,
applying its constant practice decided to award the club 5% interest p.a. on the said
amount as from the date of the claim 8 September 2020.
76.
Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the
Regulations, the Chamber established that the player’s new club (i.e. Bnei Sakhnin) shall be
jointly and severally liable for the payment of compensation. In this respect, the Chamber
was eager to point out that – in spite of Bnei Sakhnin’s allegations – the joint liability of the
player’s new club is independent from the question as to whether the new club has
committed an inducement to contractual breach or any other kind of involvement by the
new club.
77.
In continuation, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, addressed the question of sporting sanctions
against the player and Bnei Sakhnin in accordance with art. 17 par. 3 and 4 of the
Regulations. In this respect, the DRC was mindful to determine that, due to the specific
circumstances of this case – and, specifically considering the sensible environment involving
the COVID’s pandemic – no sportive sanctions should be imposed on the player nor on Bnei
Sakhnin.
78.
The DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
iii. Compliance with monetary decisions
79.
Finally, 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.
80.
In this regard, the DRC highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a restriction on playing in official
matches up until the due amounts are paid and for the maximum duration of six months.
81.
Therefore, bearing in mind the above, the DRC decided that, in the event that the player
does not pay the amounts due to the club within 45 days as from the moment in which the
club communicates its relevant bank details, provided that the decision is final and binding,
a restriction on playing in official matches, for the maximum duration of six months shall
become effective on the player in accordance with art. 24bis par. 2 and 4 of the Regulations.
82.
In parallel, the DRC also outlined 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,
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either nationally or internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods.
83.
Therefore, bearing in mind the above, the DRC decided that, in the event that Bnei Sakhnin
does not pay the amounts due to the club within 45 days as from the moment in which the
club communicates its relevant bank details, provided that the decision is final and binding,
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 Bnei
Sakhnin in accordance with art. 24bis par. 2 and 4 of the Regulations.
84.
The DRC recalled that the above-mentioned restrictions 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.
d.
Costs
85.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
86.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Club Kerala Blasters, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent 1, Mr. Oswaldo Henriquez, has to pay to the Claimant the amount of USD
120,100 as compensation for breach of contract plus 5% interest p.a. as from 8 September
2020 until the date of effective payment.
4.
The Respondent 2, Bnei Sakhnin FC, is jointly and severally liable for the payment of the
aforementioned compensation.
5.
Any further claims of the Claimant are rejected.
6.
The Claimant is directed to immediately and directly inform the Respondent 1 and the
Respondent 2 of the relevant bank account to which the Respondent 1 and the Respondent
2 must pay the due amount.
7.
The Respondent 1 and the Respondent 2 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).
8.
In the event that the amount due, plus interest as established above is not paid within 45
days, as from the notification by the Claimant of the relevant bank details to the Respondent
1, the following consequences shall arise:
1. The Respondent 1 shall be restricted on playing in official matches up until the due
amount is paid and for the maximum duration of six months. 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 restriction of six months on playing in official matches, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
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9.
In the event that the amount due, plus interest as established above is not paid within 45
days, as from the notification by the Claimant of the relevant bank details to the Respondent
2, the following consequences shall arise:
1. The Respondent 2 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.
10. This decision is rendered without costs.
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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