Labour Disputes
Texto da decisão
REF FPSD-4106
Decision of the
Dispute Resolution Chamber
passed on 18 May 2022
regarding an employment-related dispute concerning the player Itsuki Urata
BY:
Johan van Gaalen (South Africa)
CLAIMANT / COUNTER-RESPONDENT:
Itsuki Urata, Japan
Represented by Melanie Schärer and Gaudenz Koprio
RESPONDENT:
SKF Sered, Slovakia
Represented by Svetozar Pavlovic
Page 2
REF FPSD-4106
I.
Facts of the case
1.
On 17 August 2021, the Japanese player, Itsuki Urata (hereinafter: the Player ), and the Slovakian
club, SKF Sered (hereinafter: the Club) concluded an employment contract (hereinafter: the
contract) valid from 17 August 2021 until 31 May 2022.
2.
Pursuant to article II par.3 of the contract, the Player is entitled to receive from the Club a monthly
salary of EUR 2,700.
3.
Article XIV of the contract, stipulates the following:
“1. The Parties have agreed that any disputes arising from or relating to the
Agreement…will be preferentially resolved before dispute settlement bodies of
the Association in accordance with the regulations of the Association.”
2. I not resolved the procedure pursuant to Section 1, the Parties have agreed that a
general court shall be competent to resolve such disputes.”
4.
According to the Player, the Club “asked the Player to leave for no reason and suspended him from
participating in training and matches and sent him a WhatsApp-message alleging that he (the
Player) ended in our club because you don’t have contract. You can go home”.
5.
Moreover, the Player indicated that the Club failed to make any salary or other contractual agreed
payments with the Player.
6.
On 2 September 2021, the Player informed the Club of its contractual obligations and that a
request from the Club to leave would be considered a serious breach of contract, additionally the
Player requested to be reintegrated to the team, that the Club immediately provide him with the
contractually agreed accommodation and food, otherwise the contract would be deemed to have
been terminated without just cause.
7.
On 4 September 2021, the Player sent a second letter to the Club requesting it “to respect the
contract by integrating the Player into the team and paying for his accommodation and food”,
granting it a deadline of two days, failing the contract would be considered as unilaterally
terminated without just cause.
8.
On 7 September 2021, the Player terminated the contract, stipulating the following:
“We revert to you regarding the subject matter and in particular regarding our previous
correspondence of 2 and 4 September 2021, which remained unanswered.
Due to your silence and the unchanged situation, especially due to the fact that our client, Mr.
Itsuki Urata, has still not been reintegrated into your team, it is clear that
ŠKF Sered is no longer interested in maintaining the employment relationship with our client.
Page 3
REF FPSD-4106
Consequently, as of today’s date, the present contract must be considered as de facto
terminated by ŠKF Sered without just cause.”
9.
Moreover, the Player mentioned that he suffered an ankle sprain while performing his services for
the Club, “which at first did not cause much pain and allowed him to continue playing for the Club
but prevented him from playing over time.”
10. In this regard, on 10 September 2021, the Player went for a medical examination at the Funabashi
Orthopaedic Clinic in Japan, “where a fracture of the 5th metatarsal bone was diagnosed, resulting
in surgery on 27 September 2021”.
11. The Player is unemployed since the termination of the contract.
II. Proceedings before FIFA
12. On 26 October 2021, the Player 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
13. The requests for relief of the Player, were that the Club pay to him the total amount of EUR 25,650,
corresponding to:
-
outstanding salary for August 2021 (1/2 x EUR 2,700 = EUR 1,350);
compensation for breach of contract corresponding to its residual value for the months of
September 2021 to May 2022 (9 x EUR 2,700 = EUR 24,300);
plus interest at a rate of 5% p.a. on the outstanding amount and compensation; and
medical costs of JPY 65,710.
b. Position of the Club and Counterclaim
14. In its reply to the claim of the Player, the Club firstly contested the competence of FIFA based on
art. XIV of the contract.
15. The Club held that FIFA is not competent to deal with the matter at hand.
16. In its reply to the claim, the Club contested FIFA’s jurisdiction based on art. XIV of the contract due
to the Slovak Football Association´s Dispute Resolution Chamber.
17. The Club further held that the aforesaid chamber meets all the requirements for an impartial body
of dispute resolution in professional football in the Slovak Republic.
Page 4
REF FPSD-4106
18. The Club further mentioned that the Player failed to present any evidence as to his injury taking
place while performing services for the Club, as it was never informed by the Player of any injury.
In this context the Club mentioned “that the injury might have arisen any time before 10
September 2021 when the Player consulted a medical doctor in Japan for the first time.”
19. The Club mentioned that based on the documents submitted by the Player, “it is apparent that it
was rather the Player who terminated the contract prematurely, instead of the Club, drawing this
conclusion from lack of any reaction as to their letter.” In this regard, the Club mentioned that the
Player terminated the contract without just cause as the Club was not granted a proportionate
period to remedy a potential breach of the contract.
20. Therefore, since the Club considers the termination as being a termination without just cause, the
amount corresponding to residual value of the contract is due to the Club. Therefore, should the
FIFA DRC find it has jurisdiction to decide this dispute, the claim of the Player against the Club
should be rejected in full and instead, the compensation in the amount of EUR 25,650 should be
awarded to the Club.
21. In conclusion, the Club requested the following relief:
-
the claim of the Player is rejected;
the Player, should pay to the Club, the amount of EUR 25,650, plus interest 5% p.a. as of the
date of notification of this decision until effective day of payment;
sporting sanctions be imposed on the Player for breach of contract during the protected
period.
c. Player Reply to Club Counterclaim
22. In reply to the counterclaim, the Player indicated that the Club was in serious breach of contract
“by dismissing the player via WhatsApp message and cutting off all further communication with
him, and therefore must compensate the player according to the petition in our claim.”
23. In conclusion, the Player requested that the Dispute Resolution Chamber reject the Club’s
arguments and accept the claim in accordance with his request.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 26 October 2021 and submitted
for decision on 18 May 2022. 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.
Page 5
REF FPSD-4106
25. Subsequently, the Single Judge 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 (March 2022 edition), the Single Judge is in principle competent to deal
with the matter at stake, which concerns an employment-related dispute with an international
dimension between a Japanese player and a Slovakian club.
26. The Single Judge further noted that the Respondent contested the competence of FIFA’s deciding
bodies in favour of the National Dispute Resolution Chamber of Slovakia) (hereinafter: the NDRC
of Slovakia), alleging that the latter is competent to deal with any disputes deriving from the
relevant employment contract, in accordance with its article XIV of the contract.
27. The Single Judge also noted that the Claimant insisted on the competence of FIFA to adjudicate
the present claim, sustaining that the NDRC of Slovakia is not an independent arbitration tribunal
guaranteeing fair proceedings and respecting the principle of equal representation of players and
clubs.
28. Taking into account all the above, the Single Judge emphasised that in accordance art. 22 par. 1
lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle, competent to
hear an employment-related dispute between a club and a player of an international dimension.
Nevertheless, the parties may explicitly opt in writing for such dispute to be decided by an
independent arbitration tribunal that has been established at national level within the framework
of the association and/or a collective bargaining agreement. Any such arbitration clause must be
included either directly in the contract or in a collective bargaining agreement applicable on the
parties. The independent national arbitration tribunal must guarantee fair proceedings and
respect the principle of equal representation of players and clubs. Equally, the Single Judge
referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations, which came into force on 1 January 2008.
29. In this respect, the Single Judge noted that the Respondent failed to provide any documentary
evidence which could prove that the national arbitration bodies of the Football Federation of
Slovakia meet the requirements established in art. 22 par. 1 lit. b) of the Regulations on the Status
and Transfer of Players, detailed in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC
Regulations. Moreover, on account of the above and referring to the principle of burden of proof
contained in art. 13 par. 5 of the Procedural Rules, the Single Judge established that the
Respondent’s objection towards the competence of FIFA to deal with the present matter must be
rejected, and FIFA is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider
the present matter as to the substance.
30. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and considering
Page 6
REF FPSD-4106
that the present claim was lodged on 26 October 2021, the August 2021 edition in of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
31. The Single Judge 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 Single Judge stressed the wording of art.
13 par. 4 of the Procedural Rules, pursuant to which he 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
32. His competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge emphasised that in the following considerations he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
33. The foregoing having been established; the Single Judge moved to the substance of the matter
and first took note of the allegation of the Player that the Club’s conduct, lead to the termination
of the contract by the Player. In particular, the Single Judge noted that the Player claims that the
Club expressed its intention to terminate via WhatsApp, inter alia, mentioning to the Player “you
don’t have contract…you can go home”.
34. Before entering the analysis of this specific case, the Single Judge deemed it appropriate to remind
the parties that 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
permit to expect the 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 to ensure the fulfilment of the contractual duties by the counterparty, 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.
35. In line with the above, the Single Judge also referred to the specific wording of art. 14 par. 2 of the
Regulations, according to which “any abusive conduct of a party aiming at forcing the
counterparty to terminate or change the terms of the contract shall entitle the counterparty (a
player or a club) to terminate the contract with just cause”.
Page 7
REF FPSD-4106
36. The Single Judge first of all wished to point out that from the documentation on file, it appears
that the Club apparently informed the Player via WhatsApp correspondence that he had to leave
the Club and was accordingly suspended from training and match participation.
37. Bearing in mind the foregoing as well as the principle of burden of proof, the Single Judge noted
that the behaviour of the Club, in particular the said WhatsApp correspondence was a clear
indication to the Player that he should leave the Club, accordingly at this point it seemed that the
Club had no desire to continue with the employment relationship with the Player. Furthermore,
the Single Judge took note of the evidence provided by the Player, showing that he consistently
and in good faith tried to contact the Club requesting it to comply with the terms of the
employment contract.
38. In this context, the Single Judge noted that the Player respectively on 2 September and 4
September 2021, requested the Club to comply with its contractual obligations and to reintegrate
the Player back to the team, however such request remained unanswered.
39. The Single Judge concluded that based on the circumstances of the present case the Player had a
just cause to terminate the contract, due to the conduct of the Club.
40. At this point, the Single Judge decided to reject the counterclaim of the Club and focus on the
claim of the Player.
ii. Consequences
41. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Club.
42. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Club is liable to pay to the Player the amounts which were
outstanding under the contract at the moment of the termination, i.e., EUR 1,350 (i.e. the pro rata
salary for August 2021).
43. In addition, taking into consideration the Player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the Player interest at the rate of 5% p.a.
on the outstanding amount as from 1 September 2021 until the date of effective payment.
44. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single Judge
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
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 player under the existing contract and/or the new contract, the time
Page 8
REF FPSD-4106
remaining on the existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
45. In application of the relevant provision, the Single Judge 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 Single Judge established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
46. As a consequence, the Single Judge determined that the amount of compensation payable by the
club to the player had to be assessed in application of the other parameters set out in art. 17 par.
1 of the Regulations. The Single Judge recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
47. Bearing in mind the foregoing as well as the claim of the Player, the Single Judge proceeded with
the calculation of the monies payable to the player under the terms of the contract from the date
of its unilateral termination until its end date. Consequently, the Single Judge concluded that the
amount of EUR 24,300 (i.e. 9 monthly salaries of EUR 2,700 each for the period between
September 2021 and May 2022) serves as the basis for the determination of the amount of
compensation for breach of contract.
48. In continuation, the Single Judge 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.
49. In this respect, the Single Judge noted that the Player remained unemployed since the termination
of the contract.
50. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the
Player did not sign any new contract following the termination of his previous contract, as a
general rule, the compensation shall be equal to the residual value of the contract that was
prematurely terminated.
51. In this respect, the Single Judge decided to award the Player compensation for breach of contract
in the amount of EUR 24,300, i.e. 9 monthly salaries of EUR 2,700 each for the period between
September 2021 and May 2022, as the residual value of the contract.
Page 9
REF FPSD-4106
52. Lastly, taking into consideration the Player’s request as well as the constant practice of the Single
Judge in this regard, decided to award to the Player interest on said compensation at the rate of
5% p.a. as of 26 October 2021 until the date of effective payment.
iii. Compliance with monetary decisions
53. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 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.
54. In this regard, the Single Judge 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.
55. Therefore, bearing in mind the above, the Single Judge decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of the
decision, failing which, at the request of the Player, 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 Club in accordance with art. 24
par. 2, 4, and 7 of the Regulations.
56. The Club shall make full payment (including all applicable interest) to the bank account provided
by the Player in the Bank Account Registration Form, which is attached to the present decision.
57. The Single Judge 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. 24 par. 8 of the
Regulations.
d. Costs
58. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the
parties.
59. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
60. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 10
REF FPSD-4106
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Itsuki Urata, is admissible
2.
The claim of the Claimant/Counter-Respondent is partially accepted.
3.
The counterclaim of the Respondent/Counter-Claimant, SKF Sered, is rejected.
4.
The Respondent/Counter-Claimant, SKF Sered, has to pay to the Claimant/Counter-Respondent,
the following amount(s):
- EUR 1,350 as outstanding remuneration, plus 5% interest p.a. as from 1 September 2021 until
the date of effective payment;
- EUR 24,300 as compensation for breach of contract without just cause, plus 5% interest p.a.
as from 26 October 2021 until the date of effective payment.
▪
5.
Any further claims of the Claimant/Counter-Respondent are rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
7.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players 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/Counter-Claimant shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum duration the
ban shall be of 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.
8. The consequences shall only be enforced at the request of the Claimant/Counter-Respondent in
accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
9. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Page 11
REF FPSD-4106
Chief Legal & Compliance Officer
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
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
Page 12