Labour Disputes
Texto da decisão
REF FPSD-633 / 21-00094
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Anthony
Stokes
COMPOSITION:
ONGARO Omar (Italy), Deputy Chairperson
ZAPISOTSKIY Yuriy (Ukraine), member
LUKASEK Peter (Slovakia), member
CLAIMANT / COUNTER-RESPONDENT:
Player Anthony Stokes, Republic of Ireland
Represented by Ms Melanie Schärer
RESPONDENT / COUNTER-CLAIMANT:
Club Persepolis FC, Iran
INTERVENING PARTY:
Club Livingston FC, Scotland
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I.
Facts of the case
1.
On 21 January 2020, the Irish player, Anthony Stokes (hereinafter: the Claimant or player),
and the Iranian club, Persepolis FC (hereinafter: the Respondent or club) signed an
employment contract (hereinafter: contract) valid as from as from the date of signature until
“after the last match of Iran Pro League, and Final of Hazfi Cup as well as match of ACL 2020
1/8 stage”.
2.
According to information contained in the Transfer Matching System (TMS), the season
2019/2020 in Iran ended on 31 May 2020.
3.
According to the contract, the Respondent, inter alia, undertook to pay the Claimant the
following monies:
- USD 150,000 on date of signature;
- USD 25,000 “at the end of March 2020”;
- USD 50,000 “at the end of April 2020”;
- USD 50,000 on 31 May 2020.
4.
Art. 4-7 of the contract reads as follows: “For any inexcusable absence in each training
session, the amount of USD 3,000 and for each unjustified absence in any match, the amount
of USD 50,000 will be deducted by the club from the payments, agreed to be paid to the
player in the contract.”
5.
Art. 4-9 of the contract states: “For the player’s absence more than 10 days, the club is legally
permitted to terminate the contract unilaterally (with just cause) as well as to follow the legal
actions through official authorities for compensation and the damages made to the club. In
this case, the player will be suspended until the club’s rights have been restored and will have
no rights for negotiations or concluding contract with other clubs”.
6.
Art. 6-4 of the contract establishes: “If during the contract, a force major situation will
interrupt the usual activities of society, yet the contract will be valid”.
7.
On 18 February 2020, after the match in the United Arab Emirates, the club authorised the
player to spend time with his family.
8.
On 22 February 2020, the club sent a letter to the player requesting him to resume work as
he was supposed to be in training on 21 February 2020 already.
9.
On 27 February 2020, football activities in Iran were suspended due to COVID-19.
10. On 4 March 2020, the Respondent reiterated its request that the player resumes work in Iran.
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11. On 15 April 2020, the player sent a letter to the club expressing his gratitude that the club
allowed him to return to Ireland on 19 February 2020, to look after his family, before the
global lockdown due to COVID-19. In his letter, the player further maintained that he is
unable to return to Iran at the moment due to force majeure in connection with COVID-19
and since football activities are suspended. Moreover, the player requested payment of his
salary which shall not be affected.
12. On 25 April 2020, the club replied and stated that it was not true that it allowed the player
to return to Ireland, but rather to spend a day in Dubai before returning to Iran. The club
further held that his absence is not justified as it was possible to return to Iran on 21 February
2020. The club stated that it will refer the player’s absence to its disciplinary committee.
13. On 25 May 2020, the player replied to the club insisting that under the COVID-19
circumstances including lockdowns around the world, it cannot expect the player to travel to
Iran. He pointed out that football activities were still suspended in Iran and requested the club
to remit his remuneration.
14. On 30 May 2020, the club terminated the contract with the player due to his unjustified
absence of more than ten days, referring to art. 4-9 of the contract. The club pointed out
that the player was absent without authorisation and missed 2 league matches and 10
trainings until 13 March 2020.
15. On 9 June 2020, the player replied to the club and expressed his regret about the termination.
He contested the club’s argumentation. In this regard, he requested payment of his
outstanding dues as well as compensation for breach of contract.
16. On 21 August 2020, the player signed a new employment contract with the Scottish club,
Livingston FC, valid as of the date of signature until 9 June 2021, including a monthly salary
of GBP 2,166 (approx. USD 2,900).
II. Proceedings before FIFA
17. On 11 January 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
18. In his claim, the player requested payment of the following monies:
- USD 75,000 net as outstanding remuneration, corresponding to his instalments due in
March and April 2020, plus 5% p.a. interest as of the due dates (1 April 2020 and 1 May
2020);
- USD 50,000 net as compensation for breach of contract, plus 5% interest p.a. as of 30
May 2020.
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19. In this regard, the player held that the club had the obligation to remit his salaries until its
termination on 30 May 2020.
20. The player further maintained that the club had no just cause to terminate the contract, since
his absence was less than one week taking into account that as of 27 February 2020 all
football activities were suspended due to COVID-19.
21. In this context, the player pointed out that the club authorised him to return to his home
country on 18 February 2020.
22. The player pointed out that due to the special circumstances concerning COVID-19 it was
unclear if he could have still travelled home to his family at a later stage.
23. In this regard, the player pointed out that his absence was justified in view of the COVID-19
outbreak at a global stage, but especially in Iran, which was hit hard.
24. Furthermore, the player held that the requests to return to Iran on 22 February 2020 and 4
March 2020 were not possible or at least not reasonable due to COVID-19.
25. Moreover, the player argued that the club acted in abusive manner and that it had no just
cause to terminate the contract on 30 May 2020, which leads to the conclusion that the
player is entitled to compensation.
26. The Claimant pointed out that the Respondent had the obligation to pay his salaries and
referred to art. 6-4 of the contract and to the FIFA COVID Guidelines.
b. Position of the club
27. In its reply, the club rejected the player’s claim and lodged a counterclaim against him,
requesting payment of USD 1,390,000, or alternatively USD 1,027,000 (if end of Iranian Pro
League is considered), as compensation for breach of contract, plus 5% interest p.a. as of
“effective payment”.
28. Such amount is composed of deductions/fines in correspondence with art. 4-7 of the contract
and consists of missed trainings and matches in various competitions until its end on 27
September 2020.
29. In its counterclaim, the club held that the player breached the contract with his unauthorized
absence after 18 February 2020. In this regard, the club held that he should have returned
on 21 February 2020.
30. The club dismissed the player’s COVID-19 arguments as no force majeure situation is
acknowledged by FIFA in any country.
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31. Furthermore, the club held that the player repeatedly breached the contract. In this regard,
the club alleges that the player misbehaved in a night club on 18 February 2020 in the team
hotel.
32. In this context, the club held having had just cause to terminate the contract on 30 May 2020
in line with art. 4-7 and 4-9 of the contract.
33. The club pointed out that the player ignored their letters to resume work repeatedly or took
long to reply to them.
34. Moreover, the club held that the player wanted to return to Ireland and had never the
intention on returning to Iran.
35. According to the Respondent, the end of the last competition was on 27 September 2020,
which is the date the contract would have ended.
c. Player’s reply to the counterclaim
36. In reply to the club’s claim, the player refuted the Respondent’s allegations and requested to
dismiss their claim.
37. First of all, the player contested that the contract would have run until 27 September 2020,
but would have already expired on 31 May 2020.
38. The player further denied false allegations of the club regarding his past behaviour and private
life, especially the statement regarding his alleged misbehaviour after the match on 18
February 2020.
39. In this regard, the player pointed out that no disciplinary proceedings were initiated at any
point.
40. Furthermore, the player reiterated that the approved absence after the match of 18 February
2020 was not limited to 21 February 2020.
41. In case the Chamber would decide that the club had just cause to terminate the contract, the
player emphasized that only one day was left during his contract and that therefore no
compensation shall be payable as the club’s calculation of its compensation claim shall not
be followed. In this regard, the player held that art. 4-7 of the contract is not applicable to
determine the compensation due to its disciplinary nature.
d. Position of the Intervening party
42. Livingston FC submitted its comments to the dispute and endorsed the player’s position.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
43. 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 11 January 2021 and submitted for decision
on 3 November 2021. Taking into account the wording of art. 34 of the October 2021 edition
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
44. 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 (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension.
45. 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 Regulations on the Status and Transfer of Player (August 2021 edition), and
considering that the present claim was lodged on 11 January 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
46. 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).
c. Merits of the dispute
47. 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.
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i. Main legal discussion and considerations
48. 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 if the Respondent had just cause
to terminate the contract on 30 May 2020.
49. In this context, the Chamber acknowledged that it its task was to examine the circumstances
of such termination and decide on the consequences thereof.
50. The Chamber started to examine the exact duration of the contract at the basis of the dispute
and since the wording refers to the end of the various competitions without naming a specific
date. In this regard, the DRC noted the club’s argumentation that the date of the actual end
of the competitions (which were postponed due to COVID-19) shall be taken into account,
whereby the player insisted on the official end date of the season 31 May 2020, which is also
when the last payment was due.
51. In this context, the Chamber took into account the parties intention when entering into the
contract, which was to establish 31 May 2020 as the approximate end date due to the last
instalment falling due by then. The members of the Chamber wished to emphasize that at
this point, it was not possible to foresee the influence COVID-19 would have on the
competition end date. Taking into account of the above, the DRC established 31 May 2020
as the end date of the contract.
52. Following the above conclusion, the Chamber held that the club’s termination on 30 May
2021 becomes moot as the contract would have expired one day later.
53. The Chamber further started to analyse the circumstances of the player’s absence as of 18
February 2020 which occurred within the context of the worldwide COVID-19 pandemic.
54. Having said that, 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,
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.
55. For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as the
FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific
country or territory. What is more, the COVID-19 Guidelines, in principle, do not exempt an
employer from paying a player’s salary.
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56. As to the player’s absence, the Chamber wished to point out that the player had the club’s
authorization to be absent between 18 and 22 February 2020, before he was absent without
authorization and that as of 27 February 2020 the football activities were suspended in Iran
due to COVID-19.
57. Notwithstanding the above, the Chamber reverted to the contents of the file and emphasized,
in particular in the context of the current pandemic, that pursuant to their right to direct and
instruct, employers may implement reasonable health and safety measures in the context of
the labour relationship with their employees. In this regard, the Chamber noted that the player
disrespected the club’s clear general normative and direct instructions that were sent to him.
58. Equally, the Chamber was of the opinion that by returning to Ireland, the player ran the risk
of not being available to play for the club after his return, since, once back, he would have
been likely to be quarantined. The Chamber concluded therefore that such circumstances
must be taken into consideration as a mitigating factor when assessing the player’s
entitlement to his remuneration.
59. On the other side, the Chamber also noted that the club requested the player to return
between 22 February 2020 and 4 March, but then only again on 25 April 2020. The Chamber
concluded that the player’s services were not actually required by the club, taking into account
that the football activities were suspended in Iran.
ii. Consequences
60. As a consequence, and taking into account that the contract would have expired on 31 May
2020, in accordance with the general legal principle of pacta sunt servanda, the player would,
in principle, be entitled to his remuneration in the amount of USD 125,000. Such amount
includes the instalments due at the end of March 2020, April 2020 and May 2020.
61. Nonetheless, as outlined before, the Chamber decided that the player’s behaviour, consisting
of a direct disrespect of instructions issued by the club, shall be considered as a mitigating
circumstance in light of the particularities of the case at hand.
62. In this respect, the Chamber considered, in particular, that by disrespecting the instruction of
the club, the player ran the risk of being quarantined upon his return, or not being able to
return at all due to travel restrictions.
63. Consequently, the DRC decided that the remuneration payable by the club to the Claimant
should be reduced to 66% of the original amount of USD 125,000, i.e. USD 83,333.
64. Therefore, the Chamber decided that the Respondent is liable to pay to the Claimant
outastanding remuneration in the amount of USD 83,333.
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65. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 1 June 2020 until the date of effective
payment.
iii. Compliance with monetary decisions
66. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the concerned
party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
67. 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
68. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
69. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
70. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8 of
the Regulations.
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d. Costs
71. 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.
72. 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.
73. 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 / Counter-Respondent, Anthony Stokes, is partially accepted.
2.
The Respondent / Counter-Claimant, Persepolis FC, has to pay to the Claimant, the following
amount:
- USD 83,333 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until
the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7.
The claim of the Respondent / Counter-Claimant, is rejected.
8. 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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