Dispute Resolution Chamber
Texto da decisão
REF 20-01335
Decision of the
Dispute Resolution Chamber
passed on 03 June 2021
regarding an employment-related dispute concerning the player Alexandre Domingo
Cristovao Mfutila
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Stefano Sartori (Italy), member
Muzammil bin Mohamed (Singapore), member
CLAIMANT:
Alexandre Domingo Cristovao Mfutila, Angola & Netherlands
Represented by Daniel Rey
RESPONDENT:
FK Keshla, Azerbaijan
Represented by Mikhail Prokopets
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I.
FACTS OF THE CASE
1.
On 17 January 2021, the Angolan-Dutch player, Alexandre Domingo Cristovao Mfutila
(hereinafter: the Claimant or the Player), and the Azerbaijani club, FK Keshla (hereinafter:
the Respondent or the Club) signed an employment contract valid as from date of signature
until 31 May 2020.
2.
On 1 July 2020, the parties signed a new employment contract (hereinafter: the Contract)
valid from 1 July until 21 December 2020.
3.
Art. 4.2.10 of the Contract states that the Player, wife and child “will be given 2-time round
trip economy class tickets Angola-Azerbaijan-Angola during the validity of this contract”
4.
Article 9.1 of the Contract states that the total remuneration of the Player for the period of
validity, amounted USD 31,087, and accordingly, the monthly remuneration amounted USD
5,454.
5.
On or around 28 August 2020, the Claimant travelled to the Netherlands in order to sort
some documentation for his naturalization as Dutch citizen.
6.
On 28 August, the Respondent sent a notice to the Player requesting him to be back for
training by 30 August 2020.
7.
On 1 September 2020, due to the failure to report back, the Respondent sent a notice of
termination to the Claimant with immediate effect.
II.
PROCEEDINGS BEFORE FIFA
8.
On 17 September 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
9.
The Claimant filed a claim before FIFA requesting the total amount of USD 42,000
composed by the residual value of the Contract and two plane tickets.
10.
The Claimant alleges that he left Azerbaijan due to the urgency in remedying his
naturalization as Dutch citizen. In his support of this argument, the Claimant provided his
own written testimony.
11.
Furthermore, the Claimant argued that it did not provide a copy of the Contract because
the Respondent had failed to provide him with one.
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b.
Position of the Respondent
12.
According to the Respondent, the Claimant has no standing to sue due to the failure on
putting the Respondent in default for the alleged debt, based on Art. 12bis par. 3 of the
RSTP, and his claim is, consequently, inadmissible.
13.
As for the substance, the Respondent submits that on 28 August 2020, the Claimant left
the Club and did not participate in the scheduled training sessions. On the same day, the
management of the Respondent demanded that the Claimant returned to his duty no later
than 30 August 2020. The Respondent added that the Player did not comply with the
requirement of the Club’s management.
14.
The Club notes that the Player claims allegedly outstanding salary for 7 months and
allegedly outstanding reimbursement of cost of two plane tickets. In this regard, the Club
underlines that the Player did not substantiate his claims in view of the applicable
regulations and did not follow the procedure for reimbursement of such a debt set forth in
the FIFA Regulations on the Status and Transfer of Players (RSTP). The Player failed to put
the Club in default as provided by Art. 12bis par. 3 of the RSTP and grant a 10-day deadline
to comply with its financial obligations.
15.
Moreover, the Club is of the opinion that it had a just cause to terminate the Contract since
the Player was warned on his breach and invited to return to the Club no later than 30
August 2020.
16.
The Club strongly disregards the Claimant´s allegations, as long as the Player did not comply
with his burden of proof in respect to the above. The Club notes that none of the above
allegations of the Player is corroborated by supporting evidence.
17.
The Club also refers to Art. 9 par. 3 of the Procedural Rules, stating that “[T]he parties shall
present all the facts and legal arguments together with all the evidence upon which they
intend to rely, in the original language, and, if applicable, translated into one of the official
FIFA languages”.
18.
Thus, according to the Respondent “the documents provided in Dutch prove neither the
Player’s necessity for an emergency leave nor the Club being informed about such a
necessity (quod non)”. Hence, the Respondent contests the admissibility of the mentioned
evidence and is of the opinion that it cannot be taken into consideration by the DRC.
19.
The Respondent submits that “the Player’s allegations on the absence of disciplinary
violations (insulting a teammate, being late on a training session) are not corroborated by
any reliable evidence”.
20.
The Respondent further submits that the DRC is precluded from considering any possible
outstanding payments from the Club to the Player other than salary debt for the actual
work, being guided by ne ultra petita principle
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21.
The Respondent states that the purchase of plane tickets by the Player included in the Claim
was not agreed with the Club. In compliance with par. 4.2.10 of the Contract, the Club
agreed to provide the Player and his family with airplane tickets for a round trip Azerbaijan
– Angola and back. However, the Club never agreed to provide the Player with the plane
tickets to Brussels via Istanbul.
22.
Thus, the above travel expenses should be entirely borne by the Player and cannot be
reimbursed by the Club
23.
The requests for relief of the Respondent, as amended, were the following:
1. The Claim of the Player is inadmissible.
Alternatively, only if item 1 is rejected:
2. The Claim of the Player is rejected
c.
Replica of the Claimant
24.
Before the answer from the Respondent was provided to him, the Claimant submitted an
unsolicited letter amending the amount requested. The FIFA Administration provided the
Respondent’s answer to the Claimant and requested the latter to confirm the amount in
dispute considering his previous letter.
25.
The Claimant sent a second submission in the following terms.
26.
The Claimant reiterated the previous requests and makes allegations of fraud by the
Respondent.
27.
Furthermore, the Claimant states that the parties had agreed to extend the Contract until
31 May 2021.
28.
The Claimant amended his requests for relief on the following terms (free translation from
original in French):
The club shall pay to the player the amount of USD 9,000 as outstanding salaries:
Partial salary for July, USD 3,000.
Salary for August, USD 6,000
The club shall pay immediately the amount of USD 18,000 for the salaries of September,
October and November 2020 (6,000*3)
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The club shall pay monthly the amount of USD 6,000 until the player finds new employment
in the amount of USD 6,000 from December 2020 until May 2021.
The Player shall inform the club of the amount received from another employment as
professional football player in order to deduct them.
29.
The Claimant submits that according to art. 4.2.10 of the Contract, the Player claims to be
entitled to be reimbursed from the Club the cost of flight tickets to his country of residence.
Hence, in the Claimant’s opinion, the Club owes the Player the amount of USD 710, for the
flights of 8 and 9 July 2020 and USD 935 for the flights of 28 August 2020.
30.
The Club shall pay the Player a compensation in the amount of 3 monthly salaries in the
total amount of USD 18,000 as compensation for breach of contract.
31.
On 13 January 2020, the Claimant sent unsolicited correspondence in which it included
screenshots, excerpts from the website Transfermarkt.com and social media posts.
d.
Duplica of the Respondent
32.
The Respondent submitted that none of the evidence filed was able to proof that the
Contract was due to expire on June 2021 as requested by the Claimant.
33.
On the contrary, the Respondent understands that the evidence provided shown the
existence of “negotiations” but at no instance “agreement”.
34.
The Respondent submits that the DRC should base its decision on the only Contract with
all the essentialia negotii between the parties.
35.
The Respondent reiterates that the Claimant had no permission from the Club to leave the
country hence the termination was with just cause.
36.
Regarding the flight tickets, the Respondent states that it was not bound to cover the travel
expenses for a route not agreed in the Contract.
37.
In relation to the correspondence filed by the Claimant on 13 January 2021, the Respondent
understand that is unsolicited and out of the deadline given to the Claimant to provide his
comments. Furthermore, the Respondent understands that it is not “new evidence” and it
“strongly objects” the Claimant’s assertion to be “newly discovered facts”. Thus, requests
the DRC to declare this submission inadmissible.
38.
The Respondent maintains the prayers for relief as stated in the Answer.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
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a.
Competence and applicable legal framework
39.
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 18 September 2020 and
submitted for decision on 3 June 2021. Taking into account the wording of art. 21 of the
February 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.
40.
At this point the members of the Chamber turned to the argument raised by the
Respondent on the inadmissibility of the claim, due to the absence of a default notice. In
this regard, the DRC confirmed that the existence or absence of a default notice is a point
to be analysed within the substance of the claim and thus would be analysed accordingly.
Thus, the DRC confirmed that the matter is admissible.
41.
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 competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Angolan-Dutch
player and an Azerbaijani club.
42.
Additionally, 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 18 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
43.
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.
44.
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
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45.
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.
i. Main legal discussion and considerations
46.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact it is undisputed that the Contract was terminated by the
Respondent on 1 September 2020. However, the parties strongly dispute the nature of the
contractual termination, i.e. whether it was made with or without just cause.
47.
In this context, the Chamber acknowledged that notwithstanding the lengthy submissions
produced by the parties, its task was to ascertain as to whether the Contract terminated
with or without just cause by the Respondent.
48.
However, before entering into this aspect of the dispute, the DRC wished to emphasize that
it could not follow the reasoning of the Respondent regarding standing to sue of the
Claimant. The argumentation used by the Respondent as to the lack of default notice and
article 12bis of the Regulations – which gives respect to the consequences attributable to a
club for having overdue payables – bears no connection whatsoever to the Claimant’s ability
to claim against the Respondent before FIFA. To this end, the DRC stressed that it was selfevident from the Contract that the Player was a party thereto and thus has standing to sue.
49.
The DRC confirmed, nonetheless, that the existence of valid default notice is a sine qua non
condition for the application of the cited consequences of article 12bis of the Regulations.
Nonetheless, the DRC noted that this is irrelevant to the outcome of the dispute, insofar as
the latter pertains to the unilateral termination of the Contract by the club. It seems, finally,
that this line of reasoning was purely dilatory argument of the Respondent, which the DRC
could not uphold.
50.
In continuation, the members of the Chamber turn their attention to the communications
exchanged between the parties around the time of the termination and in particular to the
termination notice sent by the Respondent on 1 September 2020.
51.
The DRC noted that after the Claimant’s absence, the Respondent gave a deadline of 2
days for him to be back in Azerbaijan. The DRC considered this deadline given to be
extraordinarily short considering the circumstances of the case, in spite of the (seemingly)
unauthorized leave by the Player.
52.
Furthermore, the DRC wished to emphasise that, in line with its longstanding jurisprudence,
only a breach or misconduct which is of a certain severity justifies the termination of a
contract. In other words, only when there are objective criteria, which do not reasonably
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permit to expect a continuation of the employment relationship between the parties, a
contract may be terminated prematurely. Hence, if there are more lenient measures which
can be taken in order for an employer to ensure the employee’s fulfilment of his contractual
duties, such measures must be taken before terminating an employment contract. A
premature termination of an employment contract can only ever be an ultima ratio measure.
53.
Considering the circumstances at hand, the DRC determined that the actions of the
Claimant could not reasonably justify the termination of the Contract made by the
Respondent and that the latter could, and should, have used more lenient measures against
the Claimant. The Respondent, within a minuscule time frame of three days, deciding to
terminate a contract on the basis of the (even if) unauthorized leave of the Player could not
in be deemed as an ultima ratio measure in the DRC’s eyes.
54.
Thus, the DRC confirmed that the Respondent terminated the Contract without just cause
on 1 September 2020.
ii. Consequences
55.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
56.
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 the general legal principle of “pacta sunt servanda”. To this end, the
Chamber confirmed that the Respondent has not evidenced having paid the outstanding
salaries requested by the Claimant. Therefore, the DRC concluded that the Respondent is
liable to pay to the Claimant the remuneration that was outstanding at the time of the
termination.
57.
As such, the DRC confirmed that the Player shall receive EUR 8,167.50 as outstanding
remuneration, corresponding to half of the salary for July 2020 and full salary for August 2020,
as per the amounts agreed in the Contract (i.e. 5,445 per month).
58.
What is more, in line with its longstanding jurisprudence in this respect, as well as based on
the request of the Claimant, the Chamber decided to also award 5% interest on
outstanding amounts, as from the respective due dates until the date if effective payment.
59.
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.
60.
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
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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.
61.
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.
62.
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.
63.
In this respect, the Chamber pointed out that the Claimant, while having argued that the
Contract had been extended, did not provide enough evidence to convince the DRC that
the Contract was due to elapse after 21 December 2020. More in particular, the DRC found
that the evidence filed by the Player, consisting of his work permit and an unsigned copy of
a contract was found to be insufficient to meet the burden of proof required. Thus, the
Chamber confirmed that absent sufficient evidence to the contrary, it shall be considered
that the Contract indeed would elapse by 21 December 2021, and that such date shall be
the one to be taken into account for calculating the compensation payable to the Player.
64.
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 until its
regular expiry amounts to EUR 16,365.81. The DRC confirmed hence that such amount shall
serve as the basis for the final determination of the amount of compensation for breach of
contract.
In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
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.
65.
66.
In the matter at hand the DRC confirmed that the Claimant has not found new
employment. Therefore, no mitigation is to be considered.
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67.
Finally, in line with its longstanding jurisprudence in this respect, the Chamber decided to
also award 5% interest p.a. on the amount of EUR 16,365.81 as from the date of claim, i.e.
20 September 2020.
iii. Compliance with monetary decisions
68.
Finally, taking into account the aforementioned considerations, 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.
69.
In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods.
70.
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, communicates the relevant bank details to the Respondent,
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 the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
71.
The DRC recalled that the above-mentioned bans 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.
72.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
73.
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.
74.
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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75.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Alexandre Domingo Cristovao Mfutila, is admissible.
2. The claim of the Claimant, Alexandre Domingo Cristovao Mfutila, is partially accepted.
3. The Respondent, FK Keshla, has to pay to the Claimant, the following amounts:
-
EUR 8,167.50 as outstanding remuneration plus 5% interest p.a. as follows:
o
o
-
On EUR 2,713.50 from 1 August 2020 until the date of effective payment.
On EUR 5,454 from 1 September 2020 until the date of effective payment.
EUR 16,365.81 as compensation for breach of contract without just cause plus 5% interest as
from 17 September 2020 until the date of effective payment.
4. Any further claims of the Claimant are rejected.
5. 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.
6. 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).
7. 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:
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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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