Labour Disputes
Texto da decisão
REF FPSD-6378
Decision of the
Dispute Resolution Chamber
passed on 10 November 2022
regarding an employment-related dispute concerning the player Elia Soriano
COMPOSITION:
Lívia Silva Kägi (Brazil & Switzerland), Acting Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), Member
Stijn Boeykens (Belgium), Member
CLAIMANT:
Hapoel Raanana Football Club, Israel
Represented by Berlin Sports Law
RESPONDENT:
Elia Soriano, Italy
Represented by Zoran Domić
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I. Facts of the case
1.
On 22 January 2020, the Israeli club, Hapoel Raanana Football Club (hereinafter: the club
or the Claimant), and the Italian player, Elia Soriano (hereinafter: the player or the
Respondent), concluded an employment contract valid as from 27 January 2020 until 31
July 2020 (hereinafter: the employment contract).
2.
On 29 January 2020, the player sustained an injury.
3.
On 11 February 2020, the player unilaterally signed a letter (hereinafter: the Termination
Letter) confirming that he agreed to terminate his employment relationship with the club
upon receipt from the club of EUR 55,000 net “as compensation for dismissal and ending
the contract”. In addition, per the Termination Letter, the player (i) waived any other
amounts in connection with the employment contract; and (ii) acknowledged that any
sum to be received from the Israeli National Insurance Institute in connection with his
injury would be “reimbursed” to the club up until NIS 200,000.
4.
The relevant paragraphs in this connection read inter alia as follows, quoted verbatim:
“8. I will also confirm that on 29th January 2020, I was injured (the: ‘Injury’). Due to such injury
I hereby agree and acknowledge that all the medical treatments (including expenses) due such
injury will be under my own responsibility and I hereby finally, absolutely and irrevocably
represent, confirm and undertake that [the club] will not have – in any time – to make any
payment and/or provide me with any benefit – outcome may which may be caused. It is agreed
that in case I will decide to receive medical and/or any kind of treatment in Israel due to the
Injury, I will be entitled to do so according to my initial agreement signed on the 27/01/2020
and until and not later then 30.05.2020 (30 May, 2020). The player acknowledge that the team
is responsible for the player medical issues in the level that is accepted by the team until the
end of the initial agreement – end of 19/20 season until the 30.5.2020.
9. In addition, I hereby confirm and agree that any payments – up to the sum of 200,000 NIS
(not include temporary loss of working ability) – which I may be entitled to – during 2020 and/or
after (future payments) – as result of a Labour Injury, including inter alia, payments from the
Israel national insurance (including, inter alia, for payment temporary disability and/or
permanent disability payments from the ‘Sports Law Insurance’ policy); payments regarding
insurance policies purchased by [the club] regarding to me and the injury – shall be the sole
property of [the club]. [The club] will be entitled to accept and receive any payment on behalf
of me related only to payments after and due to my injury.
10. Additionally, I hereby agree, acknowledge and obligate to participate in any kind of medical
committee exams and/or interviews, which will be executed by the Israel national insurance in
Israel and to cooperate with the Team in any matter regarding my Injury and I agree and
obligate to cooperate with the Team’s lawyers (including provide the Team with relevant POA)
in all matters regarding my injury and my benefits (if I entitled for) due to such Injury, including
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– opening a mutual bank account under the Team and my name (both, together) for the
purpose of incoming payments due my injury.
11. I hereby warrants and agree and give my consent that in case one (or more) of this letter’s
provisions will be violated by me (and/or someone on my behalf) such violation (or
noncompliance with this letter provisions) will be considered to be a breach of this letter and
the Team will have the right and it will be entitled to, and I will be obligated to pay,
compensation of the sum of 60,000 Euro. Such amount is considered as liquidated damage
(agreed compensation).
12. This letter shall be subject to the laws and regulations of Israel. Any disputes, controversy,
or claim arising out of or relating to this letter or the breach, termination or invalidity thereof,
shall be subject to the jurisdiction of the judicial organs of IFA and the Civil Courts of Israel”
(emphasis in the original).
5.
The Termination Letter was only signed by the player and his lawyer. It was not
countersigned by the club.
6.
On 3 January 2021, the Israeli National Insurance Institute addressed a letter to the player
and informed that he would be entitled to NIS 230,882 in connection with his injury.
According to the information provided by the club, such amount was received by the
player on 28 January 2021.
7.
On 13 July 2021, the club sent the player a default notice stating that he was in breach of
the Termination Letter insofar as no payment had been reimbursed to that date.
Consequently, it requested payment of NIS 200,000 plus EUR 60,000 as penalty fee (cf.
par. 11 of the Termination Letter).
II. Proceedings before FIFA
8.
On 15 June 2022, the club filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the club
9.
According to the club, the player received more than NIS 200,000 from the Israel National
Insurance Institute on 28 January 2021 but failed to comply with the terms and conditions
stipulated in the Termination Letter.
10. Therefore, the club argued that the player should also be liable to pay it: (i) the
abovementioned amount; plus (ii) a contractual penalty of EUR 60,000. Furthermore, the
club requested to be awarded interest of 5% p.a. on both amounts as from the respective
due dates until the effective payment.
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b. Reply of the player
11. On 19 July 2022, the player filed his reply to the club’s claim.
12. The player initially challenged the jurisdiction of the FIFA Dispute Resolution Chamber
(DRC) to adjudicate on this matter considering the parties’ choice of forum established in
the Termination Letter. In this respect, the player highlighted that the civil courts of Israel
have exclusive jurisdiction over the dispute at hand. He equally pointed out that the Israeli
law applies.
13. Alternatively, the player entered into the substance of the matter. In doing so, he firstly
explained that the Termination Letter was never translated by the club and the parties
engaged in unfair negotiations, which lead to him being “severally disadvantaged”.
Specifically, he claimed not to speak English, hence argued that “the sole purpose of [the
Termination Letter] was to secure for the Claimant that the Respondent could not assert any
claims either under [the employment contract] nor on the basis of his injury”.
14. Furthermore, the player explained that “the insurance payments were made exclusively in
connection with [his] inability to work” and such concept was not included in paragraph 9
of the Termination Letter. As such, he claimed that such amounts should not be due to
the club, hence that he did not breach any financial duty.
15. Taking the above into consideration, the player’s requests for relief were as follows, in
verbis:
“- The Claimant is not entitled to payment in the amount of NIS 200,000.00 under Art. 9 of the
[Termination Letter], as the Respondent was not required to pay out all payments related to
his temporary working ability from the health insurance to the Claimant.
- Since the Respondent had not breached his obligations under the [Termination Letter], the
Claimant is also not entitled to a claim in the amount of EUR 60,000.00 pursuant to section 2
of the [Termination Letter].
- Since the Claimant is not entitled to the aforementioned main claims, he cannot claim
interest. The Claimant is already not entitled to interest under the Swiss Code of Obligations,
as the applicability of Israeli Law was expressly agreed.
- However, the decisive factor is that the DCR has no jurisdiction, as the labour courts
of Israel have exclusive jurisdiction.” (emphasis in the original).
c. Rejoinder of the of club
16. On 25 July 2022, the club filed its rejoinder on this matter.
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17. As a departure point, the club opposed the player’s allegations as to the jurisdiction and
applicable law. In synthesis, the club pointed out that the jurisdiction clause included in
the Termination Letter is neither specific nor exclusive. What is more, it did not expressly
exclude the jurisdiction of the FIFA Dispute Resolution Chamber (DRC).
18. Therefore, the club argued that per the jurisprudence of the Football Tribunal and the
Court of Arbitration for Sport (CAS), the FIFA DRC is indeed competent.
19. As to the substance, the club asserted that the player’s argumentation lacks legal basis.
Moreover, it argued that the content of the Termination Letter is clear, and the club could
not be accused of not having negotiated fairly insofar as the player unequivocally
accepted the arrangement by signing the document.
20. In continuation, the club also challenged the player’s position as to the nature of the
payment received from the Israel National Insurance Institute. The club’s view is that
paragraph 9 of the Termination Letter does not need to be interpreted, and it is equally
clear to establish that the player should be liable to pay it NIS 200,000 upon receipt of his
insurance by the competent authorities.
21. In view of the foregoing, the club reiterated its requests for relief as included the
statement of claim.
d. Final comments of the player
22. On 28 July 2022, the player filed his final comments on this matter.
23. The player initially raised an objection against the representatives of the club, stressing
inter alia that “as it is still unclear what legal form ‘Berlin Sports Law’ has, it has still not been
proven that Mr. Schweele, may/can represent ‘Berlin Sports Law’”.
24. Subsequently, the player turned to the analysis of the jurisdiction and reiterated that FIFA
is not competent to entertain this matter. The player added that the choice of forum was
in fact clear and exclusive, as well as it is confirmed by the national law of Israel.
25. Having established the above, the player recalled his argumentation as to the violation of
the fair negotiation. He concluded that the club (akin an employer) should not be allowed
to take advantage of his lack of knowledge of the English language.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and admissibility of the claim
26. 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 15 June 2022 and submitted
for decision on 10 November 2022. Taking into account the wording of art. 34 of the
October 2022 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
27. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (RSTP) (July 2022 edition), the
DRC is in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Italian player
and an Israeli club.
28. At this point, the DRC took due consideration that the player challenged the validity of the
representation of the club bearing in mind the alleged lack of clarity regarding the legal
form of its attorneys (i.e. Berlin Sports Law).
29. Notwithstanding the above, the Chamber stressed that the only requirement for the
representation of a party before the FIFA Football Tribunal is the submission of a written,
specific and recently issued power of attorney (cf. art. 18, par. 1 of the Procedural Rules).
Therefore, while confirming that such a document was indeed provided by the club
together with its statement of claim, the members of the DRC decided that the player’s
position in this respect should be set aside.
30. In continuation, the DRC also considered the player’s challenge to the jurisdiction of FIFA
to adjudicate on this matter on the basis of the wording of the jurisdiction clause included
in the Termination Letter. In particular, the Chamber noted that the player argued that
the civil courts of Israel should be competent to enter into the substance of the case.
31. Taking the above into consideration, the DRC recalled that in line with art. 22, par. 1 of
the FIFA RSTP, FIFA is competent to hear employment-related disputes between a player
and a club with an international dimension “without prejudice to the right of any player (…)
or club to seek redress before a civil court for employment related disputes”. In other words,
the parties may freely agree to give jurisdiction to a civil court and such choice shall always
prevail, provided the parties to a dispute have explicitly and exclusively chosen to have
their case heard by an ordinary court (cf. Commentary to the RSTP – Edition 2021, p. 358).
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32. In casu, after carefully analysing the wording of clause 12 of the Termination Letter, the
DRC observed that it refers both to the jurisdiction of the judicial organs of the Israeli
Football Association (IFA) and the national civil courts, in verbis:
“This letter shall be subject to the laws and regulations of Israel. Any disputes, controversy, or
claim arising our of or relating to this letter or the breach, termination or invalidity thereof,
shall be subject to the jurisdiction of the judicial organs of IFA and the Civil Courts of Israel”
(emphasis added).
33. As a consequence of the above, the members of the Chamber were of the opinion that
the requirement of exclusivity for establishing the competence of the national courts was
not met, hence the player’s objection in this respect had to be rejected.
34. It followed, in the Chamber’s view, that it has jurisdiction over the matter at hand on the
basis of art. 22 par. 1 lit. b) of the FIFA RSTP.
b. Applicable legal framework
35. Subsequently, 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 FIFA RSTP (July 2022 edition), and considering that the present claim was
lodged on 15 June 2022, the March 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
36. For the sake of completeness, and given the reference by both parties to the Israeli law,
the DRC highlighted that when deciding a dispute, the FIFA regulations prevail over
another national law chosen by the parties since the objective of the Regulations is to
create a standard regulatory framework to which all actors within the football community
are subject to and can rely on. This objective would not be achieved if the DRC would have
to apply the national law of a specific country on each and every dispute brought to it.
37. Therefore and as opposed to the player’s position in this respect, the Chamber pointed
out that the content of the Israeli law is not per se relevant to the dispute sub judice, which
should be entertained in light of inter alia the Regulations and the jurisprudence of the
FIFA Football Tribunal.
c. Burden of proof
38. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by
or within the Transfer Matching System (TMS).
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d. Merits of the dispute
39. Its competence and the applicable regulations having been established, the Chamber
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 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
40. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is claim for outstanding remuneration and
contractual penalty lodged by the club against the player in connection with the
Termination Letter.
41. Having analysed the documentation on file, the DRC considered that it remained
undisputed that shortly after the beginning of the employment relationship with club, the
player suffered an injury and the parties decided to depart from the execution of the
employment contract. In order to do so, the player signed the Termination Letter, which
formally establish the termination of their employment relationship, as well as sets forth
the parties’ financial arrangements in connection thereto.
42. At this point, the DRC found it noteworthy that in line with its well-established
jurisprudence, had the parties not entered into a different written agreement, the player
would still be entitled to continue with the contractual relationship regardless of his
injury, as well as to receive the medical care and his entire remuneration under the
employment contract. Nevertheless, and for reasons that the Chamber could not precise,
the player confirmed the signature of the Termination Letter, which inter alia established
the following:
• the employment contract was terminated with immediate effect;
• the club would have to pay the player EUR 55,000 as compensation for the
termination;
• the player would waive his rights to receive any additional amount arising from
the employment contract; and
• the player would pay the club up to NIS 200,000 (i.e. approximately EUR 55,000)
following the receipt of his insurance fees from the national authorities, under
penalty of being liable to the payment of an additional penalty of EUR 60,000.
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43. Against this background, the Chamber considered that, despite not challenging the
signature of the Termination Letter, the player claimed that he was not aware of its
content because provided in a foreigner language and without any translation. Likewise,
he argued that the club incurred in unfair negotiations.
44. In this respect, the DRC recalled its solid jurisprudence which establishes that parties are
responsible for the consequences of the documents they sign, and the language of the
agreement is per se not a valid reason to render it null under penalty of jeopardizing the
the general legal principle of pacta sunt servanda.
45. In parallel, the DRC was also observant the player did not advance any documentation in
support of his position of unfair negotiations, e.g., any correspondence exchanged
between the parties in this connection, a request for translation, or any proof of
disagreement / duress. Consequently, the DRC was firm to determine that the player did
not meet his burden of proof in line with art. 13, par. 5 of the Procedural Rules, hence his
argumentation in this regard should be set aside.
46. Notwithstanding the above and while considering the particularities of this case, the
Chamber also agreed that the mere signature of a contract is not sufficient to ensure the
enforceability of its contents. In particular, the DRC recalled the CAS jurisprudence which
establishes that, in concrete terms, to assess whether a transaction is permissible, the
court/deciding body is required to conduct a balancing of interests, checking whether the
mutual claims waived by each party are of comparable value. Put in another way, whether
there is an appropriate equivalence between the parties' reciprocal concessions,
especially when a waiver is included in the relevant document.
47. On this note, the members of the DRC could not ignore that by signing the Termination
Letter the player not only waived the continuity of his employment relationship with the
club and the entire remuneration established in the employment contract (including any
additional medical care), but also agreed to pay back NIS 200,000 (i.e., approximately the
same amount he received for the termination) plus a potential a contractual fine in case
of delay. On the other hand, from the documentation on file, the DRC could not identify
any concrete advantage for the player capable of balancing such a weight.
48. With the above in mind and taking the overall particularities of this case into
consideration, the Chamber determined that the content of the Termination Letter led to
an unjustified disadvantage of the club over the player. In particular, the DRC deemed
that paragraphs 9, 10 and 11 of the Termination Letter have a clear potestative nature as
they granted the club the right to receive back the only compensation paid to the player
under the employment contract in addition to a disproportionate fine in case of noncompliance (i.e., more than 100% of the outstanding amount). Furthermore, the DRC
outlined that the asymmetry of the arrangement between the parties was even higher
when considering that the liability imposed on the player arose from an injury severe
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enough to justify the termination of the employment contract few days after its signature
and to be officially classified as a “inability to work”.
49. On this note, the members of the Chamber pointed out to the usual imbalance in the
bargaining power of the employer and of the employee and decided that the
abovementioned provisions (and the financial arrangement as whole) have a clearly
abusive nature, hence shall not have any legal effect in the case at hand.
50. Based on the abovementioned considerations, the members of the DRC decided that the
claim of the club should be rejected.
51. Lastly and for the sake of completeness, the DRC wished to remark that – as the player
has not lodged a counterclaim against the club seeking payment of any amounts under
the employment contract – the Chamber was prevented from awarding any amounts in
this regard on the basis of the ne ultra petitia principle.
e. Costs
52. In conclusion, the Chamber referred to art. 25 par. 1 of the Procedural Rules, according
to which “Procedures are free of charge where at least one of the parties is a player, coach,
football agent, or match agent”. Accordingly, the Chamber decided that no procedural costs
were to be imposed on the parties.
53. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
54. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Hapoel Raanana Football Club, is admissible and rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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